Galveston Oil Co. v. Thompson

STAYTON, Chief Justice.

Appellee’s version of the facts of this case is, that he was employed to work as a sweeper on the lower floor of the oil mill, and that while thus engaged he was directed by the superintendent to go aloft and remove a scantling on the joists, or perhaps rafters, above. That in obedience to the order he ascended and walked along a narrow plank to the place where he could reach the scantling still above him, when in an effort to remove it hia clothing was caught on a revolving shaft, around which he was drawn until his clothing, by which he was held, gave way, when he was thrown to the floor below and in the accident greatly injured. He states that the immediate cause of his clothing being caught on the shaft was protruding bolts with which the shafting was coupled, these being, as he and others state, unnecessarily and improperly so left, making it perilous for persons to work about or around the shaft.

He further shows that the place to which he was directed to go was one not visited by employes except the man whose business it was to oil the machinery.

The superintendent denied that he directed appellee to remove the scantling; that there was any reason why it should be removed, or that he had any knowledge whatever of any intent on part of appellee to attempt to remove it; and there was some evidence tending to show that he had gone to his home at the time appellee claimed to have been directed to remove the scantling, but this evidence was of uncertain character.

Before the accident occurred appellee had lost one hand, and at the time caught in the shafting was standing with the side from which the hand was gone next to the shafting, which caught the loose sleeve.

That the place to which appellee was directed to go was one of danger, and this greatly increased by the protruding bolts, the evidence tends strongly to show.

Appellant offered evidence tending to show that the bolts used in couping shafting did not protrude, as claimed by appellee, but that on the contrary the coupling was in all respects carefully made in the manner usual for such couplings.

The court, in effect, charged the jury that appellee would be entitled to recover if the superintendent ordered him to perform a service not “ within the province of the plaintiff’s employment ” which was dangerous, if in this the superintendent did not use due care, provided appellee was injured while attempting, in the exercise of due care, to obey the command.

It is urged that the court erred in the charge given, in that “thereby the jury were prevented from considering as a matter of defense the reckless disregard of plaintiff for his own security in undertaking to obey the order of defendant’s agent.”

Such was not the effect of the charge; on the contrary, the jury were authorized under the charge if they believed the undertaking was one so obviously dangerous that a prudent person would not have attempted it, to find appellee guilty of contributory negligence, which they were informed would defeat his right to recover, notwithstanding the superintendent may have also been at fault.

The charge may not have been as full as it might with propriety have been made, but was correct so far as it went, and if appellee desired the proposition now insisted upon more clearly presented, a charge doing this should have been requested.

No request was made, doubtless because counsel for appellant at the time believed that the issues were fairly and with sufficient fullness presented.

It is now urged that the evidence showed such negligence on the part of appellee as to preclude a recovery, and this proposition is based on the theory that it was negligence per se for appellee to stand, while attempting to take down the scantling, with his partially empty sleeve next to the revolving shaft.

The jury were fully informed of the position of the scantling, the narrow standing to which appellee was confined, the position of the revolving shaft with reference to these, as well as the manner of its coupling, and it was for them to decide, under all the circumstances, whether appellee used such care as he ought to have used.

The third assignment is that “The jury were not authorized by the evidence to disbelieve the testimony of defendant and credit that of plaintiff on the question as to whether the agent of defendant gave the order to plaintiff to take down the scantling while the machinery was in motion, or at any other time, because there was a direct conflict of testimony between the two (and only witnesses as to the main question), and all the internal evidence arising out of facts testified to by others showed the impossibility that such an order could or would have been given; the ■facts testified to being that there was no use to have done that which plaintiff says was ordered, and certainly no possible reason for having such thing done whilst the machinery was in operation; and all the evidence went to show that the defendant’s agent was absent at the time of the alleged order.”

There was a direct conflict between the two witnesses, and that condition presents the very case in which this court is not authorized to set aside the finding of a jury whose province it is to pass upon the credibility of witnesses and the weight to be given to their testimony.

It is not denied that appellee was injured while attempting to take down the scantling, and when the jury came to consider what may be termed “internal evidence,” they may have inquired why did this one-handed sweeper, whose duties were on the lower floor, undertake, if unbidden, to perform an undesired service, which defendant says was exceedingly dangerous? Why should he undertake unbidden to interfere with the management of the superintendent and to remove the scantling which was placed where the management desired it to stay?

It is not true that the evidence was all to the effect that the superintendent was not at the mill when the order to appellee is claimed to have been given, and that offered in addition to the testimony of the superintendent was of the most uncertain and unreliable character—evidence as to the superintendent’s usual dinner hour and hour of return to mill, and like testimony.

A motion for new trial was made on the ground that witnesses for appellee had not made correct statements in regard to the bolts with which the shaft coupling was made, and in support of this affidavits were filed, which were met by counter-affidavits.

That issue was made on the trial, and the affidavits only showed ability to furnish cumulative evidence of the same character as that offered; besides the court had the affidavits made for both parties before it when the motion was overruled.

Appellee is a minor who sues by next friend, and complaint is made because the judgement is in favor of the minor and not in favor of the next friend.

The judgment is correctly entered. Railway v. Hewitt, 67 Texas, 482. The next friend has no right to collect or receive the money unless he shall qualify as guardian of the estate of the minor, though he subjects himself to liability for costs.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Delivered February 14, 1890.