Hilje v. Hettich

WILLIAMS, Associate Justice. The defendant in error recovered a judgment in the District Court against' plaintiffs in error for damages for a personal injury claimed by him to have been caused by their negligence, which judgment was affirmed by the Court of Civil Appeals. The cause is now before this court upon writ of error from the judgment of affirmance. The case made by the pleadings of the plaintiff was that he was employed by defendants as a laborer to work in the seed house, which was connected with their cotton seed oil mill, one of his duties being to keep the hoppers filled with seed and another to repair belts by which the machinery in the seed house was run, if they broke; that the lights in the house were insufficient to enable him to perform his duties in safety; that he made complaint of the fact to the foreman in charge of the premises, and the latter promised to furnish sufficient lights; that thereafter one of the belts broke, and in attempting to repair it he was, on account of deficient light, hurt in the manner which will be stated further on. Other grounds for recovery were alleged which were not submitted in the trial court and which néed not be stated. The plaintiff .testified to the facts alleged, as to the nature of his employment, and the work he was to perform, the deficiency of lights, the complaint to the foreman and his promise to supply more lights, and to his subsequent injury, received while repairing a broken belt, which he attributed to want of light. He also testified that when the belt broke he reported it to the foreman and the latter ordered him to repair it, a fact which he had not alleged. The foreman denied that a complaint had ever been made to him by plaintiff of any want of lights, or that he had promised to furnish others. He also denied, in effect, that it was any part of plaintiff’s duty to repair belts, and that he had instructed him to repair the one in question. The court charged the jury as follows: “If you believe from the evidence that the defendant’s foreman directed the plaintiff to repair the belt that he attempted to repair, and if you further believe from the evidence that the light at the place where said belt was to be repaired was not reasonably sufficient to enable plaintiff to do the work he was directed to do by the foreman (if you believe he was directed) with reasonable safety, and if you further believe from the evidence that plaintiff bad complained to defendant’s foreman previous to said injury in regard to said insufficiency of light and that said foreman had promised him to provide sufficient light, and that plaintiff continued to work in reliance on said promise, and that said foreman had failed to provide reasonably sufficient light,” etc. We are of opinion that the assignment of error upon this instruction is well taken. Under the petition, plaintiff’s right to recover depended on proof of *325 the fact, among others, that, when the promise was made, it was a part of his duty to repair belts, for the promise would be only an undertaking to furnish light sufficient to protect him while doing such work as he was employed to do. It would have no reference to anything outside the scope of his employment. The jury could have found from the evidence that it was no part of his duty to repair the belt, and, had they done so, the plaintiffs case, as he alleged it, would have failed. The charge did not require the finding of this essential fact, but authorized the jury to supply its place by another not alleged, viz., an order from the foreman, at the time of the occurrence, to repair the particular belt. The charge was erroneous, not only in allowing a recovery upon facts not alleged, but in virtually requiring the jury to apply a previous promise to furnish light to the work of executing the particular order, given without such a promise, when the jury might have found that .the previous undertaking was only to furnish light for the doing of another and less dangerous work, If the order was given to do work which it had not before been plaintiffs duty to do, it was given without any promise to furnish more light to aid him in doing it, and the plaintiff, at the time, knowing the condition of the lights and undertaking to repair the belt with such knowledge, assumed the risk, and would have failed, unless he could show right to recover upon some other theory. Railway v. Drew, 59 Texas, 13. The court did not err in assuming, under the evidence, that the foreman had authority to undertake, for his employers, to furnish better lights. Another objection made to the charge is that it involves the proposition that if a promise had been made to supply more, light, all question ■of assumption of risk by the servant was removed from the case, although it should appear, from lapse of time or otherwise, that before he received his injury, plaintiff should have known that the promise would not be fulfilled. The idea of the charge seems to be that after a promise, on the part of the master, to remedy a defect has been made, there can be no assumption of risk by the servant, but only contributory negligence would defeat his action for injuries sustained from the defective and ■dangerous condition which the master had promised to remove. We do not think this is true.' The authorities which treat of the effect of such a promise to repair generally limit its operation, as preventing the conclusion that the servant has assumed the risk, to a reasonable time for the master to comply, and lay it down that, when it is or should be manifest to the servant that the defect will not be remedied, a further continuance in the service will be an assumption of the risk. Railway v. Bingle, 91 Texas, 287. This is only an application of the general principle that a servant who knows of a dangerous condition, brought about by the negligence of the master, assumes the risk of it if he continues in the employment. When he knows or ought to know that a promise to repair will not be performed and yet remains in the service, he can not be longer regarded as acting upon the promise. The failure to fulfill *326 tlie promise is negligence of the master, and the servant, knowing definitely that any purpose to perform it has been abandoned by the master, does not thereafter rely on it. The testimony of plaintiff was that he made his complaint to the foreman and received his promise three days before he was injured, and that the next evening he again mentioned the matter and the foreman told him he would fix the lights the next morning. The testimony on this point is a little obscure and leaves the impression that the witness may have meant that the last conversation was in the evening before he was hurt at night; but the jury could have found that it was on the day previous and that the lights were not improved the next morning, as promised. The seed room was lighted by electricity, and all that was necessary, according to plaintiffs evidence, was to put globes in some of the sockets which were empty and remove the dust from such as were in place, which could have been done in a very short time. It can not be said that these facts showed conclusively that there was no purpose to carry out the promise with respect to the lights; nor can it, we think, be said that the jury should have been virtually instructed that the promise removed all question of assumption of risk by the servant. The evidence was sufficient to make it proper for the court to submit to the jury the view of the law which we have just stated. Another assignment of error is that the evidence did not warrant the recovery, because the condition of the lights was not the proximate cause of the injury, and we must hold that this is true. The evidence shows that in the seed room there was machinery, consisting of elevators, conveyors, shafting and pulleys, with leather belts, by which they were operated. The belt which plaintiff attempted to mend parted where its ends were laced or riveted together, and was to be mended by punching holes in the ends and fastening them together. This belt was around the pulleys and hung perpendicular to and some distance above the floor of the room. One of the conveyors, which was a screw or spiral for conveying seed from the mill building to the seed room, extended diagonally across the latter and ran about three feet distant from the belt and was kept revolving in a box or trough with sides and bottom, but no cover. Between the belt and conveyer was a platform about two feet wide and about twelve feet from the floor, and it was necessary to go upon this in order to reach the belt. Plaintiff went on it and pulled the end of the belt across to the conveyor and laid it upon a strip of wood nailed across the top of the box in order to punch holes in the belt, this, according to his evidence, being the only place available for the purpose where there was sufficient light. Holding a punch in his left hand and a claw-hammer in his right, he undertook to place the belt in position upon the strip, and the handle of the hammer, in some way, came in contact with the revolving screw, the claws of the hammer caught his hand, and before he could release his hold jerked it into the conveyor and injured it. He states that the want of light was the cause of the accident; that if there had been more light it would" *327 not have happened, etc., but this is merely his opinion, not admissible upon the point, which must be decided from the facts of the occurrence,, as he states them. He admits that he knew the screw was there, what it was, and how it operated, and that it would be. dangerous to have-his hand caught by it. He knew that he was resting the belt upon the-box containing this screw and just how it was situated. He selected this-place because there he could see how to use his punch and hammer. It is evident, therefore, that more light would not have given him better knowledge than he had of those things which hurt him. He does not claim that he could not see the position of his hand and the handle of the hammer, of that he did not know the precise position of the moving screw. His contention that the want of light caused his injury has nothing to support it, unless it be the fact that it caused him to select this place, rather than another at which to do the work. If it be conceded that his own act, in choosing this place because of the dimness of the light at the other places, is a proximate result of the failure of the master to have the place better lighted, which is a very doubtful proposition, it is still true that he was hurt solely by getting his hammer caught in the screw, the position, operation and danger of which were just as well known to him as the most abundant light in the building could have made them. Under the facts, taken at their strongest in favor of the judgment, it is clear to our minds that an injury thus brought about was not such a consequence of the deficiency of light as the master could reasonably have foreseen, but was immediately caused by plaintiff’s own intervening actions, which were sufficient to produce it and would have produced it had there been no such deficiency. Railway v. Folliard, 66 Texas, 603-6; Railway v. Chambers, 73 Texas, 296; Railway v. Bigham, 90 Texas, 223. Reversed and remanded.