Waggoner v. Porterfield

*173 LEVY, Associate Justice. Appellee, a minor suing by next friend, suffered the loss of an arm while in the service of appellant in the Vernon Cotton Oil Mill, and in his petition claims that his injury was the result of the negligence of the appellant in failing to provide him a reasonably safe place in which to work, and in permitting a set screw resting in the collar that surrounded the line-shaft and near the coupling to project outwardly and beyond the surface or face of said collar and line-shaft. The appellant answered by general denial, contributory negligence and assumed risk. The case was tried to a jury, and in accordance with their verdict a judgment was rendered in favor of appellee. The seed house of the Vernon Cotton Oil Mill was a building about 50 by 300 feet in size. • The machinery therein was in the east end of the building, and consisted of a system of conveyors, cleaning machinery, reels, etc. The power for the operation of the machinery in the seed house was convejred from the engine to the seed house by a line-shaft and belting about 300 feet long. This line-shaft did not extend through the full length of the seed house, but to about 35 to 30 feet from the east end of the same. It hung on bearings to upright posts, which were about 30 feet high and placed on the floor on a good foundation and extended up to within about five or six feet of the top of the seed house. The bearings on which the line-shaft ran were on the north side of the posts, which were about ten feet apart, and there were three pulleys between the said posts and the line-shaft. The line-shaft had a collar on its west end 3 7-16 inches in diameter, whose office it is to keep out the end play of the shaft—that is, from working east and west—and this collar was attached to the line-shaft by means of a set screw running through the center of the collar. It is conclusively shown that this set screw which so fastened the collar near the west end of the shaft and against the bearing was longer than was necessary and projected out of the collar 1% inches. The line-shaft was from about 14 to 16 feet from the floor of the seed room. Some 3 y2 feet below the line-shaft and on the south side of the upright posts to the north side of which the line-shaft was fastened by bearings, was a board two inches thick and ten inches wide for the employes to stand on while putting belts on the pulleys of the line-shaft and oiling the bearings of said line-shaft, and that board was supported by two horizontal pieces which were fastened to the upright posts and braced. On the same side of the upright posts there was a 3-by-6 board extending between the two posts and fastened to them, and on the south side of them and some two or three feet above the line-shaft, for the employes to hold to while engaged in putting belts upon the pulleys of the line-shaft. Appellee was twenty years of age and had been at work in the seed house about three days before the injury, and before entering the service of appellant had had about ten days’ experience in working in the seed house of a cotton oil mill at the same kind of work. The injury is shown to have occurred in substantially the following manner: Appellee and Robert Coon had picked the lint cotton off of the reel in the seed house, and then appellee, as was his duty, went back on the platform that ran along by the line-shaft to put on the reel belt, while Coon staid down on the floor to hold on the "shaker *174 belt, which, without his holding it on, would come off every time the reel was started. The belt was on the left side of the pulley, and appellee turned himself towards the pulley, with his left side towards the shaft, supporting himself on the platform, and his right hand holding' the support above him provided for the purpose, and with his left hand laid the belt upon the pulley; and then, laying the palm of his left hand against the belt, attempted to give the belt a tilt, and as he did so the set screw, which was somewhere between two and four feet from the pulley and hip-high to him, caught his clothing about his hip on the left side and carried him around the shafting, tearing off his clothing, and his left arm was caught in the pulley and was clipped off, and he fell to the floor, a distance of about seventeen feet. The evidence as to whether appellee had his suspender down at the time of his injury is in conflict. Appellee says he did not have his suspender down, but properly adjusted over his shoulder. Appellee testified, in effect, that he did not know nor had his attention ever been directed to the fact that there was a projecting set screw in the collar around the shafting, and that he had had very little opportunity to see it because of the short time of three days he had been at work and the fact that the end of the shaft was fifteen feet above the floor of the seed room, and at times when he had occasion to be up near the place where the set screw was the machinery was running, and the shaft, collar and set screw were at the time revolving at a speed of 240 revolutions to the minute. The verdict of the jury involves a finding in favor of the appellee on all the issues in the case, and in deference to the verdict of the jury, which we think is sustained by the evidence, we conclude that the appellant was guilty of negligence as claimed in the petition, and that the appellee was not guilty of contributory negligence, and that he did not know nor in the circumstances could he have reasonably seen that the set screw projected over the rim of the collar of the line-shaft, and that the amount of damages awarded by the verdict is sustained, by the evidence. After stating the case,—By the first assignment of error it is contended that the court erred in refusing to give a peremptory instruction to the jury to find for appellant. We do not think there was error. It was properly a question, we think, for the decision of the jury, in all the circumstances of the case, as to whether appellant was guilty of negligence in permitting the set screw which caused appellee’s injury, to project above the collar in which it was inserted. Bonn v. Galveston, H. & S. A. Ry. Co., 82 S. W., 809; Mountain, Copper Co. v. Pierce, 136 Fed., 150; Columbia Box & Lumber Co. v. Drown, 156 Fed., 459; Pruke v. South Park Furniture Co., 71 N. W., 276; Ingraham v. Moore, 27 Pac., 306. See 4 Thompson Commentaries on Keg., secs. 4020, 4022. We do not think that it could be held in the case that appellee was precluded from a recovery because he assumed the risk of danger from the set screw. The undisputed evidence shows that he had no knowledge of the projecting set screw, and had had very little opportunity to see it. He had been at work in the seed house only three days prior to the injury. The set-screw was near the end of the shaft and fifteen feet above "the floor of the seed room, *175 and at the times when appellee had occasion to be up near- the place where the set screw was the machinery was running, and the shaft, collar and set screw were revolving at a speed of 240 revolutions to the minute, which rendered it difficult for him to have become aware of the fact that the set screw projected out above the surface of the collar. Several witnesses testified that while the line-shaft was revolving at its usual speed a person looking at it could not distinguish that it was a set screw. It was uncon-troverted that no warning or instruction was given the appellee about the set-screw. It was shown by several competent witnesses that it was unusual for the set screw to project from one to two inches above the collar. The servant has the right to rely upon the assumption that the machinery with which he is called upon to work is reasonably safe. He does not assume the risks arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risks, or in the ordinary discharge of his own duty must necessarily have acquired the knowledge. Missouri, K. & T. Ry. Co. v. Hannig, 91 Texas, 347; Peck v. Peck, 99 Texas, 10; Texas & N. O. Ry. Co. v. Bingle, 91 Texas, 287; Galveston Oil Co. v. Thompson, 76 Texas, 237. As to whether or not the manner in which appellee undertook to put the belt on the pulley was more dangerous than another way that the same work might have been done is a controverted question between the witnesses who testified in the case. We do not think it could be held as a matter of law that appellee was guilty of contributory negligence, under all the facts and circumstances of the case. Missouri, K. & T. Ry. Co. v. Keefe, 37 Texas Civ. App., 588; St. Louis & S. F. Ry. Co. v. Vestal, 38 Texas Civ. App., 554, 86 S. W., 790; Greenville Oil & C. Co. v. Harkey, 20 Texas Civ. App., 225, 48 S. W., 1005; Industrial Lumber Co. v. Bivens, 47 Texas Civ. App., 396, 105 S. W., 831; Smith v. Buffalo Oil Co., 41 Texas Civ. App., 267. The only purpose of the evidence complained of in the second assignment being to ascertain whether or not the set screw could be produced in court, and not offered or 'insisted upon to show that the set screw had been removed after the injury, there was no error, and the assignment is overruled. It was permissible for appellee to show his knowledge or means of knowledge of the existence and presence of the set screw, and the third assignment is overruled. Assignments 4, 5, 5a, 5b and 5c are overruled. The evidence which counsel commented on was properly admitted in the case in the first instance. The court failing to submit to the jury any issue of negligence as to the running-board, which was plead, the objections urged were entirely removed. The petition alleged that appellee was a minor and inexperienced in the work about an oil mill, and that appellant was so informed prior to the injury, and failed to instruct him how to do the work. His evidence tended to show these allegations. His evidence was to the effect that previous to the injury he did not see the set screw, and had occasion to be near it only once or twice during the time that he had been working, which was three days, and then the machinery was in *176 continual rapid revolution. The sixth and seventh assignments are therefore overruled. We do not think there was reversible error shown in assignments eight, nine, ten, twelve, thirteen and fourteen. We think the court fully and correctly instructed the jury as to what would constitute negligence in the case, and the eleventh assignment is overruled. Assignments fifteen, sixteen, seventeen, eighten, nineteen, twenty, twenty-one and twenty-two relate to objections made to the argument of counsel in the case. We are not prepared to hold that the remarks of counsel complained of were of that character and kind as to require or warrant a reversal of the case. The court especially instructed the jury in his main charge not to consider or be influenced by certain statements made by counsel. The twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth and twenty-ninth assignments relate to the refusal of the court to give special charges. We have considered all these assignments, and think they should be overruled. The main charge of the court correctly, fully and affirmatively applied the law applicable to the facts of the case. The thirtieth and thirty-first assignments relate to the disqualification of a juror. The objection that "the juror had served more than six days in the District Court within the six months preceding the trial comes too late after verdict. Schuster v. La Londe, 57 Texas, 28; Newman v. Dodson, 61 Texas, at p. 96; Rice v. Dewberry, 93 S. W., 715. The thirty-second assignment claims that the verdict is excessive. Considering the age and the injury and suffering of appellee in the case, we do not feel warranted in holding that the verdict is excessive. See Galveston, H. & H. Ry. Co. v. Bohan, 47 S. W., 1050. The case was ordered affirmed. Affirmed. Writ of error refused.