Van Geem v. Cisco Oil Mill , 1912 Tex. App. LEXIS 1358 ( 1912 )

DUNKLIN, J.

Charles Van Geem, while engaged as an employé of the Cisco Oil Mill, a private corporation, in the operation of a cotton gin, sustained an injury to his hand as the result of that member coming in contact with the saws of a gin while running. He sued the gin company for damages for the injury, and from a judgment in defendant’s favor plaintiff has appealed.

According to his testimony upon the trial, at the time of his injury he was engaged in cleaning.out one of the gin stands after the ginning. for the day had terminated. In order to do this, he signaled the engineer to start the machinery. When that was done, he raised the- breast of one of the gin stands, and started to place a block thereunder to hold it up, when the lever with which the gin was provided for raising the breast and which was in a defective condition broke, and knocked his hand against the saws, thus causing his injury. In his petition he alleged that the house in which the gin stands and machinery were installed was constructed in such a manner as to cause excessive vibrations of the machinery and gins while in operation; that the gin and lever with which he was working at the time of his injury were out of repair and in a defective condition; that the portion of the building where he was working was improperly lighted; that by reason of his inexperience in the operation of gins he was ignorant of the dangers of that service and that defendant failed to warn him of such dangers. He alleged that defendant was guilty of negligence which was the proximate cause of his injury in constructing’ the building in the manner indicated in furnishing the gin in the condition mentioned, and without sufficient lights, and in failing to warn him of the dangers of the service he was performing at the time of his injury.

[1] In the court’s main charge to the jury, the defenses of assumed risks and plaintiff’s contributory negligence were submitted in general terms. In addition to those instructions, the court gave this further special instruction requested by defendant: “You are instructed that before you can find for the plaintiff on account of any defect in the machinery of the defendant with which or at which the defendant (plaintiff) was working, or on account of same being out of repair, you must first find from the evidence that there was a defect in said machinery, or that the same was out of repair at the time of the accident, and you must further find from the evidence that said defect or lack of repair of said machinery, if you believe there was any, was the proximate cause of plaintiff’s injuries; and you are further charged in this connection that if you believe from the evidence that said defect or lack of repair (if you first find there was any which contributed to plaintiff’s injuries) was one of which plaintiff knew prior to said accident, or one of which it was his duty to know, or one of which, by the use of ordinary care he could have known, and one which it was his duty to repair, and one which he negligently failed to repair or negligently failed to discover and repair, and was thereby injured, you will find for the defendant.” According to plaintiff’s testimony, it was not one of the duties of his employment to inspect the gins to discover defects. If it was not his duty to do this, then he did not assume the risks incident to such defects unless he knew of them, or in the proper discharge of the duties of his employment must necessarily have acquired that knowledge, and under such circumstances he owed np legal duty to discover them. Bonnet v. G., H. & S. A. Ry., 89 Tex. 72, 33 S. W. 334; M. K. & T. Ry. v. Hannig, 91 Tex. 347, 43 S. W. 508. The special instruction in addition to the instructions already given in the main charge upon the defenses of assumed risks and contributory negligence unduly emphasized those defenses, and probably impressed the jury with the belief that they were authorized to find that it was plaintiff’s duty under the law to inspect for such defects, even though it was not one of the duties of his employment so to do. Hence, the assignment of error addressed to this instruction is sustained.

[2] The following charge was given: “It devolves upon the plaintiff in a civil action to sustain the material allegations in his petition contained by a preponderance of the evidence, and, unless you find -that the plaintiff has established the material allegations in the petition, you will find for the defendant.” The use of the word “established” is criticised as imposing upon the plaintiff an improper burden, under the rule announced in the decision of I. & G. N. Ry. Co. v. Duncan, 55 Tex. Civ. App. 440, 121 S. W. 367. In view of the connection in which the term is used, it is not likely that the jury understood that the burden was upon the plaintiff to do more than to make out his case by a preponderance of the evidence, but upon another trial we would suggest that the charge be so framed as to be free of this criticism.

What we have said in reference to that instruction applies also to the instruction's given in submitting plaintiff’s case, complaint of which is made in the first assignment of error.

[3] The instruction last referred to is further criticised as limiting plaintiff’s right of recovery for defendant’s negligence in failing to furnish a reasonably safe place for plaintiff to work and reasonably safe machinery and appliances with which to work. These criticisms are untenable. The instruction was favorable to the plaintiff, and, if there was any error in failing to submit other grounds of negligence as a basis for a recovery, these were errors of omission only of which appellant cannot complain in the absence of a requested instruction presenting the same.

[4] In his charge the court defined negligence and ordinary care, and instructed the jury that it was the duty of the defendant to “use ordinary care and due diligence to furnish suitable machinery and appliances and to use diligence in keeping the same in repair.” The charge contained this further instruction: “You are also instructed that the degree of care which should be used by the defendant in the procuring of reasonably safe machinery and appliances is to be considered with reference to the risk to be incurred and must be reasonably proportioned to such risk.” It is unnecessary for us to determine whether or not the giving of this instruction would constitute reversible error; but, as the case is to be reversed on other grounds, we suggest that upon another trial the instruction last quoted be omitted. G., H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894.

[5] Another instruction given reads: “You are further instructed that a servant assumes the ordinary risk incident to the operation of machinery, and in this case you are charged that, while the plaintiff assumed the ordinary risk incident to his employment, he assumed no risk caused by the negligence of the defendant, if any is proved, unless he knew of such risk or in the ordinary discharge of his duty must necessarily have acquired knowledge thereof.” Contrary to numerous criticisms made, we think there was no error in giving this charge. One of the criticisms is that it ignored the issue of plaintiff’s ignorance of the dangers incident to his employment, and alleged negligence of the defendant in failing to warn him of those dangers. The strength of the plaintiff’s entire case rests upon the charge of negligence, and by the instruction given the jury were told that plaintiff did not assume the risk of any negligence of the defendant unless he knew of the same and of the risk incident thereto.

[6] Appellant insists that there was no evidence to warrant the submission of the issue of plaintiff’s contributory negligence. The witness Davenport testified that immediately after plaintiff’s injury, and in answer to the question by the witness what caused the injury to plaintiff’s hand, plaintiff replied, “That damn lever broke, and I got my hand into the saws while I was trying to put the block under the breast.” 'Witness further testified that plaintiff “said he got it split open in thqm saws up there. He said he should have known better.” The majority of the court are of the opinion that this evidence is sufficient to warrant the submission of the issue of contributory negligence.

[7] The failure of the court to submit issues of negligence alleged in plaintiff’s petition other than those embraced in the charge if error at all were errors of omission only, of which appellant cannot complain, in the absence of a request by plaintiff for the submission of the same.

[8] There was error in permitting the witness W. N. Ousley to testify that to his opinion the defendant’s ginhouse was the best constructed building of the kind that he ever saw, as the construction of other particular buildings was irrelevant to any issue in the case. Haynes v. Plano Mfg. Co., 36 Tex. Civ. App. 567, 82 S. W. 532.

[9] The testimony of the witness R. L. Davenport, in effect, that it was his custom which he always followed to instruct all the defendant’s employes that, if anything got out of order to fix it, was properly admitted as the same tended to show that he gave such instruction to the plaintiff, contrary to the testimony of the plaintiff denying ‘that he had ever received such instructions. I. & G. N. Ry. Co. v. Kuehn, 2 Tex. Civ. App. 210, 21 S. W. 62.

Eor the errors indicated, the judgment is reversed, and the cause remanded.