Gamer Co. v. Gammage , 1913 Tex. App. LEXIS 503 ( 1913 )

HENDRICKS, J.

This is an appeal from the district court of Tarrant county, from a verdict and judgment in appellee’s favor for $4,000. At the time of appellee’s injuries, he was the operator of a machine in appellant’s plant, used for the purpose of cutting leather washers, the leather being placed by hand under the cutter fixed in the end of a perpendicular shaft, and the machine set in motion for the purpose of the work by a lever shifting a belt from a loose pulley to a tight pulley on the same shaft, which, with the action of the belt upon the tight pulley, started the machine in operation. The loose pulley turned upon a shaft, without operating the cutter; the tight pulley, with the belt thereon, only transmitting the power to the perpendicular rod operating the cutter. To stop the machine by means of a shifter, the operator would shift the belt back to the “idler” or loose pulley. There was a balance wheel, or a “flywheel” as termed by some of the witnesses, attached to the machine, which could be operated by the employs by hand, and when turned and in motion also moved the perpendicular rod and cutter; and the operation of the flywheel and the movement of the belt upon the tight pulley were .the only means by which the machine and cutter could be put in motion, unless started on account of some defect which appellee alleges existed on this occasion, as follows: “That said machinery by reason of the negligence of the defendant, its managers, superintendents, and servants, was out of repair and defective, and was ’dangerous to work with, the lever being out of repair and not properly secured and fastened so as to hold the belt on the idler, and the belt, being worn and crooked and not true, would not stay on the idler, but by wobbling moved the lever and got onto the fixed pulley and started the machinery, and the idler pulley was worn and wobbled and was not properly set on the shafting, and would wobble and otherwise carry the belt onto the fixed pulley, or by friction and negligent failure to oil would become heated and tighten on the shafting, thereby starting the machinery, and there were other defects in said machinery which caused it to start up and run and to make it dangerous, which were all unknown to the plaintiff and were not obvious.” This cutter, which perforated the leather, worked in a “die,” and was fastened in place by a horizontal pin, inserted into tbe perpendicular rod, and upon tbis particular occasion Gammage claims that be 'bad tbe cutter in bis left hand, and was pressing upon tbe cutter into tbis perpendicular shaft with three of tbe main fingers of bis left band, with bis thumb outside, pressing against tbe machine, and was in tbe act of inserting tbis connecting pin in order to fasten tbe cutter, when tbe machine started in some manner unknown to him, and with tbe downward stroke of tbe perpendicular rod and cutter upon tbe die below, amputated tbe three fingers bolding tbe cutter; that bis attention and vision were directed to tbe immediate work in band of fastening the cutter to tbe rod, and as soon as tbe rod began to move bis sense of sight and feeling informed him of that fact, and that be knew, of course, that it would cut bis fingers off if it struck tbe die. He testified that when be began bis employment be was instructed by an em-ployé, to whom be was referred by tbe superintendent of tbe plant, bow to adjust tbe cutter to tbe rod, and tbis instruction was tbe same method used by him when injured, and that he was not warned of any defect in tbe machinery, or instructed any differently as to any other method of adjusting tbe cutter, which is not denied in tbis record. Plaintiff bad been in tbe service of tbe appellant company nine days when injured, however, not working upon this particular machine tbe whole period, but just tbe length of time be operated it is not definitely stated; and be stated that during that period no other person, so far as be knew, ever operated tbe machine, and that be bad never beard or knew of tbe machine starting without tbe belt having been shifted to tbe tight pulley, or tbe flywheel having been moved, and further said, “Before tbe time I was injured, it bad always responded and worked all right — responded to tbe shifter.” Upon this particular occasion be says be bad not worked upon tbis machine for about two days, and tbe same was at rest, and that be saw when be went to tbe machine that tbe belt was upon tbe idler pulley, and when be was inserting tbe pin for tbe purpose of fastening tbe cutter onto the rod, be was facing in tbe direction of tbe balance wheel, and did not have occasion to move tbe connecting rod so as to get into position for insertion; that “be found it exactly in tbe position be wanted it”; that when tbe connecting rod was in tbe right position to insert the cutter and key, it leaves a space between four and five inches from the die below to the cutter above, and that be would have that much space less bis fingers between tbe two objects.

In eoiiformity with his pleadings, the plaintiff in this case introduced one W. R. Kirby, an expert witness, who qualified himself as an erecting engineer, and machinist, and familiar with this character of machinery, and who testified that if tbe machinery was in proper condition and correctly constructed, you could not start it except by using the shifter or flywheel, and if it started in any other manner, it was defective. He testified to three defects, which “could exist that could start tbe machine if a man did not throw the shifter or turn tbe balance wheel” : First, that tbe shifter might be out of plumb (out of balance) and lean against the belt, and tbe loose belt, touching tbe shifter, with tbe weight of tbe same traveling, and tbe pressure against it, towards tbe tight pulley, would cause the belt to crawl to tbe tight pulley, and when tbe contact was sufficient with tbe belt on tbe tight pulley, the machine would start; second, be says tbe shaft upon which tbe pulleys operate has a collar at each end outside tbe bearings, which work endways, and if this collar worked loose it would permit tbe tight pulley to move along tbe shaft and get under tbe belt and start tbe machine; and, third, from lack of oil tbe loose pulley and shaft, on account of tbe friction, might become heated and stiek — become a tight pulley so to speak — -and start the machine. He testified he bad known all three defects to occur in tbe operation of machinery, and as to tbe second defect, be said the remedy to apply would be to slide tbe shaft back and tighten the collar, “so that the tight pulley cannot get under the belt,” and further said, “You could not get tbe machine to run right until you fixed it; you have to fix the machine.” As to remedying tbe third defect, be said: “When from lack of oil a shaft and a loose pulley would get hot and swell, so tbe loose pulley would grip tbe shaft instead of turning on it, * ⅞ ⅜ you would have to take tbe pulley off tbe place where it is heated, dress tbe shaft, and oil tbe pulley * * * until tbe pulley will turn -free again.”

Tbe evidence in tbis case is totally lacking of any proof of actual knowledge of any defect in tbis machine; tbe affirmative proof is to tbe contrary, and tbe liability of tbe master must be based 'upon a proposition in law that, if defective, be could have discovered the defect by tbe exercise of ordinary care — it must come within tbe rule where, under tbe circumstances shown, the accident presumably should not have happened if duo care with reference to inspection bad been exercised. Labatt on Master & Servant expressed tbe rule in ordinary cases that “tbe positive branch of tbe rule which expresses tbe significance of tbe fact that tbe abnormal condition had existed previously to tbe accident may be stated as follows: Where tbe instrumentality which caused tbe injury was in an unsafe condition so long before tbe accident happened that tbe master would have discovered such unsafety if be bad been in tbe exercise of reasonable care, be stands, as regards liability, in tbe same predicament as if be had actually known of tbe defects.” Volume 1, § 1S2, p. 280.

There should be a limitation at some point, o£ course, bottomed upon the facts of each particular case, where a court can say the evidence is not sufficient. In the case of Gulf, Colorado & Santa Fé Ry. Co. v. Pettis, 69 Tex. 689, s. c., 7 S. W. 93, the Supreme Court, although holding the master liable upon other grounds, held that where the passage of a preceding train tore up a reasona.-bly safe and sound track, and rendered it defective an hour before another train was wrecked, the master could not be held liable, involving the corollary that a reasonable system of inspection, if made with that degree of care obligatory in such matters, could not have discovered such a defect, and the injury and accident avoided. We presume, of course, that appellee, in reality bottoms his case upon the doctrine of res ipsa loqui-tur, the thing speaks for itself, and which from the citation of authorities in the Hayden Case, 29 Tex. Civ. App. 280, 68 S. W. 530, we deduce that the Court of Civil Appeals pertinently applied the same rule, although the facts there were not as developed and as significant as to the exculpation of the' master as here. “Where the particular thing causing the injury has been shown to be under the management of the defendant or its servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanaition, that the accident arose from want of care.” Ry. Co. v. Suggs, 62 Tex. 323, and the doctrine is well illustrated in the case of McCray v. Railroad Co., 89 Tex. 170, 34 S. W. 95. In ordinary cases where res ipsa loquitur does not apply, the servant is not entitled to have his case go to the jury unless he introduces in addition to the fact of the occurrence of the accident some testimony which fairly tends to show that the employer was guilty of negligence, and cases within the above rule merely shift the burden of proof.

“The doctrine * * * simply calls upon the defendant, after proof of the accident, to give such evidence as will exonerate him, if any there be, and relieves the plaintiff from the burden of proving the nonexistence of an adequate explanation or excuse.” Bienz v. Unger et al., 64 N. J. Law, 600, 46 Atl. 595. That case was one where a trip hammer had fallen in some unaccountable manner, without the action of the plaintiff. In that case it is true that the machine, after the accident, had been scrutinized, and prior to the time of the accident had exhibited defects which, upon explanation, the court concluded on account of having been remedied were not the proximate cause of the particular occurrence, and in the same opinion the same judge says: “Indeed it cannot be seriously contended that at the close of the ease any one could say what caused the machine to act as it is said to have done, still less to indicate what part of it was defective or out of order, or whether any part of it was”— and further announces: “There is no such thing as ‘negligence at large.’ This is not one of those cases in-which the plaintiff, in default of proof of the particular in which the defendants were negligent, may point to the occurrence by which he was injured, and say that this, of itself, made the probability that the defendants had acted carelessly of greater weight than the presumption that they had not, which is the doctrine called ‘res ipsa loquitur.’ In the present case ‘res ipsa,’ viz., the behavior of the machine as described by the plaintiff, does not with any greater weight of probability suggest negligent conduct attributable to the defendants than it does mechanical errancy unknown to them.”

The case of Stackpole v. Wray, 74 App. Div. 311, 77 N. Y. Supp. 634, discloses the sudden fall of an elevator due from a defective bolt, which was broken, and the court said: “The witness who examined this bolt and cap immediately after the accident testified that there was no exterior evidence of weakness of the bolt or cap. The break indicated that it had been torn apart a half to three-quarters of an inch inside the frame, leaving a ragged edge; that there was no indication on the external surface of the bolt that it was liable to break; and none of the witnesses could say that, if the cap had been removed and the bolt inspected, they would have been able to discover any defect in the bolt. There was no direct evidence as to what caused this elevator to fall, but the jury would have been justified in inferring that the breaking of this bolt caused the shift to drop out of gear, * * * which would cause the elevator to fall. There was evidence, which was not disputed, that the machine at the time of the accident was in apparent good order; * * * that it was properly constructed, with a safety clutch underneath the car. * ⅛ * 'The plaintiff stated upon the trial that he relied solely upon the evidence of a lack of inspection of the machinery connected with the elevator to sustain a recovery, and there was evidence to justify a finding that there had been no inspection of this elevator since it was in use. That it is the duty of one maintaining a machine of this character for the use of his employes to properly inspect it, so as to discover and repair any defect in it, cannot be disputed; but, to sustain a recovery upon the ground that a failure to inspect was negligence, there must be evidence to justify a finding that the neglect to inspect the elevator was the proximate cause of the injury.”

The plaintiff and appellee in this case has seen fit to plead specific defects, with a general allegation of other defects, as to the cause of the starting of the machine, and we are inclined to think should be confined to those specially pleaded; whether or not this is true, at any rate he has assumed the burden of proving the defects, which, either one or the other (necessarily conjectural and speculative), was the proximate cause of the injury. The development of the facts of this case, stronger than the facts in the Hayden ■Case, with the character of the pleadings in this case, differentiate it from the case of Railway Company v. Hayden, which was similar upon the facts; but there the accident spoke for itself, without any evidence ascertainable from the opinion in that ease of any facts whatever in defense of the master. Res ipsa loquitur cannot apply with the full significance of the thing speaking for itself, where from the development of the whole case it projects the culpability into “negligence at large,” where you are unable to infer or grasp it; and in this case we are unable to ascertain from this record the culpability of the appellant as the proximate cause of this injury, even if we assume that there was dereliction of the master in the matter of inspection; if the evidence is in such condition that even if the master had exercised the care that a typically prudent person should have exercised, and places the matter in that domain of conjecture, and doubt, not sufficient to warrant a reasonable belief of the existence of the fact which is sought to be inferred, the plaintiff fails. The necessary fact to be inferred here is that the Gamer Company could have discovered a defect which caused the starting of the machine, and all the testimony, including that of the plaintiff in the case, is that this machine, prior to the momentary act of injury, worked in a proper manner, and that immediately after the accident the belt was working properly on the loose pulley, and at all times thereafter (it is true from the defendant and his witnesses) it continued to behave properly. The defect conjecturally brought forward by Kirby, the expert witness, with reference to the heating of the loose pulley and shaft, and the other defect in regard to the tight pulley working under the belt, as conditions which were existent as the proximate cause of this injury, in the face of the countervailing proof, are unreasonable. The witness Gorman, who rushed to the assistance of plaintiff when he heard his cry, testified that when he got there he looked at the shifter and saw nothing unusual whatever about the machinery, and the loose pulley with the belt thereon was running in the usual manner, and although having been employed by the Gamer Company for a considerable length of time, he had never heard or seen this machinery started in any other manner than by the flywheel or the shifter.

In the Stackpole-Wray Case,' supra, the court further said: “The plaintiff in this case did not content himself by simply proving the accident, and asking for the submission of the question to the jury in the absence of evidence by the defendant, but called witnesses to prove the cause of the accident, and from their testimony these facts (above mentioned by us) were proved. Assuming that in this case, in the absence of any explanation, the fact of the accident would be evidence of probative force sufficient to require the question of defendant’s negligence to be submitted to the jury, the question then presented is whether, upon all the testimony on the case, there was evidence to justify a finding that the accident happened from any negligence of the defendant. ⅞ ⅞ * What did he omit to do that a prudent person would do, which, if done, would have prevented this accident? There is no evidence that an inspection would have detected a weakness in the bolt, from which it could be inferred that it was liable to break. * ⅜ ⅝ And it seems to me, from the undisputed testimony of witnesses produced by the plaintiff, that any inference that the jury would be justified in drawing from the happening of the accident, unexplained, was disproved, and that it clearly appeared that the accident * haiipened without negligence of the defendant.”

As to the duty of inspection and the evidential prerequisites to the maintenance of an action based on failure to inspect, Labatt on Master & Servant, vol. 1, § 155, puts it interrogatively, “whether conditions which caused the injury were discoverable by an examination of a reasonably careful character?” Appellee may say that some of this testimony is from the defendant, and the fact that the plaintiff without dispute testified he never touched the shifter or the balance wheel is a contradiction by inference of the testimony of the defendant and his witness that this machine was in good repair, and that it maintained this condition at all times. The announcement of this principle is often true, but there is some discretion, even with a higher court, where all the testimony combining the plaintiff’s and the defendant’s is such as not to warrant the existence of a reasonable belief of the proof of a fact, and may be considered.

The plaintiff testified: “I had worked with this machine about nine days before I got hurt, except two or three days I was not working upon it. * * * I might have testified at the former trial of this case that, ‘Immediately after the accident the belt was on the loose pulley, and the belt was moving and the machine was still. I believe that is a fact’; that is my testimony now.” A witness may know a fact, notwithstanding the condition of his mind at the time, and we do not regard this as an idle statement, although the surroundings were not conducive to observation. The expert witness, Kirby, testifying for plaintiff, makes it very persuasive, corroborated by Gamer, that the two defects mentioned in the face of the opposing conditions here, is more consistent, or at least, just as much so, of the fact of their nonexistence as of their existence. If the tight pulley worked under the loose pulley, and the shaft working endways, and once started upon the path towards the loose pulley, or the loose pulley to the tight pulley, it is more reasonable that an immediate succession of the same happening would exist, which is found not to exist in this record; the loose pulley, immediately after working smoothly with the belt upon the same, is so much more compatible with the existence of the other fact sought to be inferred as to place it in the domain of doubt and conjecture. It is uncontroverted that the tight pulley was a crown pulley, higher in the center of the circumference of the pulley and sloping to the rim of the same on each side of it, and that when the belt once started upon the tight pulley, in obedience to a physical law, would continue to climb until it covered the pulley. Kirby says it could strike an obstruction and the belt would shift back to the loose pulley; he does not say what kind of an obstruction, whether an iron rod, a cottonwood stick, or a man’s fingers. The physical fact is that when the belt began to move to the tight pulley it accelerated the force as it began to climb, added to by the downward stroke, along with gravity after it got over the center, which is bound to have occurred in this instance before it struck the die below, and assisted by the flywheel, which Kirby says “has made a good many revolutions while the plunger is coming down to the die” — make his testimony valueless. The highest elevation from the die is six inches, and the point where Gammage says the machine started (the place where the fastening was required to be made) was 4 to 4⅝ inches from the die, which is corroborated by Gamer. Kirby further says: “If it is off of the center the least bit it would come down a whole lot easier than it would if it was just exactly on the center, because you have to start the whole load, and when you come over the weight or gravity of this load would be in favor of coming down, so it would take less energy to start it down on the tight pulley.” • The plaintiff says that the stroke of this descending rod was so quick that he was unable to jerk the three fingers from the machine within the space of 4 or 4½ inches.

In the case of Redmond v. Delta Lumber Co., 96 Mich. 546, 55 N. W. 1005, by the Supreme Court of Michigan, “plaintiff’s counsel contends that the failure of the machine to stop when the lever. was released raises a presumption of negligence, thereby making it necessary for defendant to show an absence of negligence upon its part. On the other hand, the defendant maintains that plaintiff’s failure to release the lever caused the accident. Proof was offered to the effect that the jack worked properly immediately after the accident, and the plaintiff himself testifies that it had worked properly for 60 days before and up to the time when he was hurt, when it suddenly failed to respond to the release of the lever. No proof was offered which tended to show that the machine was out of repair, unless the testimony that it failed to work was such proof. Counsel for plaintiff contends that, if the jury should find that the accident resulted from failure of the machine to respond to the release of the lever, it necessarily follows that it was from abnormal causes, and that in such case the law presumes negligence, and the onus is upon the defendant to show the cause of this accident, or at least if it was not due to-its fault.” It may be true that a close reading of this case and of others does not seem to give full significance to the rule of res ipsa; however, in each case the court based its decision upon a development of the facts, which placed the negligence or imputed culpability at large to such an extent as that it would have to be decided by “guesses or conjecture.”

Our Supreme Court, in the cause of Texas & Pacific Railway Company v. Kowsikowski, 103 Tex. 175, 125 S. W. 4, although it held that -the rule did not fully apply to that case, used this significant language: “It is said by the Court of Civil Appeals that the action of deceased with reference to the east switch point shows that it was defective or out of order in some way. All that his action indicates is that the switch point did not work as it should have done at that time. Does that justify an inference of negligence on the part of the defendant? Is it not the reasonable inference that the switch had been satisfactory up to that moment? * * *- No one can say from this evidence, therefore, that this switch point had ever failed to work properly, except at the moment before the derailment came,” etc. — holding that where the facts were consistent with other hypotheses would exculpate the defendant, and the’ plaintiff could not recover.

Even if the concession had to be made that the shifter was out of line at the very time the injury is shown to have occurred in this case, in the face of other facts, however, we cannot see how there could be an inference of a necessary finding that the defendant in this case could have in any way, by the exercise of ordinary care, discovered the defect hypothetically assumed by the plaintiff to have existed. Which of these three things can a jury say did exist, and which did the defendant have to discover? It is true that the witness Kirby said that by the exercise of reasonable diligence a master could discover either one of the defects mentioned by him, a pronouncement of a principle of law compounded with a question of fact which, even if the testimony were admissible, is no more, if as much, as a scintilla in this case to prove the existence of any fact. We invite a careful reading of Railway v. Thompson, 11 Tex. Civ. App. 658, 33 S. W. 718; H. & T. G. v. Barrager, 14 S. W. 242; Gulf, C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 581; T. & P. Ry. Co. v. Endsley, 103 Tex. 434, 129 S. W. 343 — analoT gous on this question.

We think the negligence, in this case, of the defendant, when you take all the testimony, at the close of the case was still “at large”; and, this cause haying been tried in the district court three times, we reverse and render, without remanding, which is accordingly ordered.