Longview Cotton Oil Co. v. Thurmond

WILLSON, Chief Justice. a part of its plant appellant operated a machine designated by witnesses as the “mixer,” for mixing food for stock. The mixer was situated in a room immediately under the roof of the building, which seems to have been two or more stories in height. Hear the mixer was a bin into which hulls used in manufacturing the food were conveyed by means of a wooden chute. *502 The bin was about 16 feet long from north to south, about 6 feet wide and 5 or 6 feet in height. Running north and south, lengthwise, through or immediately over the bin, near its center from east to west, and 5 feet and 8 inches above its floor, was an iron shaft which, when revolving, operated the mixer. A portion of the shaft near the north end of the bin, nearly or about opposite a door opening into the bin from the west, was spliced, and 6 or 8 bolts and nuts used in the splicing projected from it for half an inch or more. ¡No portion of it was covered or in any way protected. Running above the bin and above the shaft, parallel with but a little to the east thereof, was the wooden chute referred to. In the portion thereof near the south end of the bin slides were so arranged as by opening same to permit hulls conveyed by it to drop into the bin, and by closing same to prevent hulls from dropping into the bin. Prior to 1905 appellee was a farmer and planter." In 1905, being then over forty years of age, he was employed by appellant, and during the season following operated the mixer. His duties, it seems, were to shovel hulls from the bin, through the door referred to, to the mixer, and by means of the slides on the chute or conveyor to keep the bin about full of hulls. At the beginning of the season of 1906 and 1907 he was assigned to the same work and charged with the same duties he had performed during the previous season. ¡November 22, 1906, the bin being about full of hulls, in the discharge of his duty he attempted to close the lids to the conveyor and stop the dropping therefrom of hulls into the bin. To accomplish this, as he often had done 'before, he climbed on the hulls near the door inside the bin,- and, grasping the rafters forming a part of the roof of the building above the bin, endeavored to draw himself up and over the shaft so he could reach and close the lids. His arms giving away with him, as he was falling he put out his foot to catch himself, it struck the shaft, the bolts and nuts projecting therefrom caught his pants, and as a result one of his legs was broken. On the ground that appellant was negligent in operating the shaft spliced and uncovered as it was, appellee recovered the judgment against appellant for $500, from which the appeal is prosecuted. After slating the case.—The sufficiency of the evidence to support the verdict and judgment is the only question presented by the record on this appeal. We think the testimony was sufficient to support the finding of the jury that appellant was guilty of negligence in using the shaft without first so covering the splice in it as to protect appellee, while exercising due care in the discharge of his duty, from injury by contact with the bolts and nuts projecting from it. There was testimony tending to show that the portion of the building in which the shaft was situated was poorly lighted, and that the splicing and bolts and nuts could not be seen while the shaft was revolving at the rate of speed it was operated in carrying on appellant’s business. Under such circumstances, it appearing that appellant had charged appellee with the duty to so regulate the flow of hulls into the bin through the conveyor, by means of the door or slide therein, as to keep the bin about full of hulls, and it further appearing that it had neither provided a way nor directed appellee as to the selection of one for his use in reaching the slide, we *503 think the jury were authorized to conclude that in the exercise of ordinary care appellant should be held to have contemplated that appellee might fail to discover that the shaft had been spliced, and in the discharge of his duty to close the slide in the conveyor might select a way to reach it which would bring him in contact with the bolts and nuts projecting from the shaft. That the contact with the bolts and nuts resulting in the injury complained of was due entirely to the accident of appellee’s arms giving away when he attempted by seizing the rafters to draw his body to the joists, we think would not affect the question. International & G. N. R. R. Co. v. Bayne, 28 Texas Civ. App., 392. We also are of the opinion that the testimony was sufficient to support the finding that appellee had not assumed the risk of injury from the bolts and nuts, and the further finding that he was not guilty of contributory negligence. It was shown that in operating the mixer the shaft made twenty-five or thirty revolutions a minute. Appellee testified that he knew there was danger in going over the shaft revolving at such a speed. Evidently the danger he referred to was that ordinarily incident to getting in contact with a shaft revolving at such a rate of speed, because it was so revolving, and not because it was spliced and had bolts and nuts projecting from it. For he testified that he did not know the shaft had been spliced, or that bolts and nuts were projecting from it. He accounted for his lack of such knowledge by saying that the bin and its surroundings were poorly lighted, that he had never seen the shaft when it was not revolving, and that when it was revolving the splice and bolts and nuts were not visible. We can not say that the jury were not authorized from such testimony to conclude that appellee did not know and was excusable for not knowing about the condition due to appellant’s negligence which rendered contact with the shaft more hazardous than it would have been but for such negligence. Peck v. Peck, 99 Texas, 10. If he did not know of that condition, he should not be held to have assumed risks due to it when he attempted to climb over the shaft. 4 Thompson on Negligence, secs. 4641, 4642; 1 Labatt on Master and Servant, secs. 270-273. For the same reason, even if the testimony was not conflicting as to whether there was another or other ways safer than the one chosen by him, he should not be denied a right to recover because he may not have chosen wisely between ways to reach the slide. If he was excusably ignorant of the fact that the shaft was spliced, in choosing a way to cross over it he should not be held to the duty of taking into consideration the bolts and nuts projecting from it, and therefore to have assumed the risk of injury from them in the event he should get in contact with the shaft. Missouri, K. & T. Ry. Co. v. Hannig, 91 Texas., 347; 1 Labatt on Master and Servant, sec. 333. We think reasonable men might well have differed in determining the question as to whether an ordinarily prudent person under the circumstances would have endeavored to reach the slide in the conveyer by climbing over the shaft, or not, and that therefore it can not be said as a matter of law that appellee was guilty of negligence which contributed to cause the injury he suffered. The judgment is affirmed. Affirmed.