Leonard Cotton Oil Co. v. Burnes

HODGES, J. The appellee sued the appellant for damages resulting from personal injuries, and recovered a judgment for the sum of ?625. The appellant is a private corporation engaged in the business of operating' an oil mill. Burnes was employed as a meal cook and cake “former,” and his injuries consisted of the mashing of his hand in the machinery with which he was working. The cake “former” is the employé who stands in front of the steam cooker, where the seed are prepared for being formed into cakes and thereupon placed in the press, where the oil is extracted. The man who operates the “former” also operates the cooker. The machinery of which the cake “former” consists is something like 31/2 or 4 feet high. The man who operates it stands in front of that machinery. According to the testimony of Burnes, his work was performed in this manner: He was furnished with a number of pieces of cloth, made of camel’s hair, about 5 feet long, 12 or 14 inches wide, and about one-eighth of an inch thick. These cloths were closely woven and made of strong material. The cloth is spread out in front of the cake “former”; the ends falling several inches over the sides of what is called the “ram.” The operator then raises a lever to the left, which causes the carriage containing the meal to come forward, and from that is deposited on this cloth enough meal to make one cake. The lever is then dropped and the carriage goes back, leaving the cloth lying with the ends hanging down and meal piled in the center. The “former” then takes the ends of the cloth and folds them over the meal. A lever on his right is then raised, which causes the elevation of the ram, which presses the meal into a cake of sufficient solidity to permit its being handled on a flat pan and placed in the press. A “run” is said to consist of the forming of 45 cakes, and requires about 20 minutes time. After the oil is pressed from the cakes, they are then “punched out” and the cloths taken off by an employé called the “skinner,” who uses for that purpose an iron hook. The process adopted for using and handling the cloths causes them to wear rapidly; some lasting only a few days and others not over one day. They break where folded, and ravel at the ends. When worn so as to be unfit for further use, they are thrown aside and new ones substituted. This was usually done by the “skinner,” but the “former” also rejected and threw aside those he considered unfit when he discovered this had not been done by the “skinner.” The latter, after taking the cloths off, put them on a shelf immediately in front of the “former,” from which place they were taken by him and used as needed. Burnes testified that at the time he was injured he had taken the cloth from the shelf in front of him, where it had been placed by the “skinner,” had spread it out over the ram, deposited the requisite quantity of meal, and reached to each side for the purpose of gathering up the ends and folding them over the meal; that as he did this the carrier came suddenly forward and caught his right hand and crushed his- fingers. H'e afterwards discovered that this unexpected movement of the carrier was caused by a raveled thread from the end of the cloth on his left, which had become wrapped around the lever that moved the carrier, and that in raising the end of the cloth he had unwittingly pulled up the end of the lever. The negligence charged in the petition, and that relied on in the trial below, was the conduct of the “skinner” in furnishing Burnes with a defective meal cloth, one with raveled threads hanging from the end. The sufficiency of the evidence to support the verdict is questioned upon two grounds: First, because there was no proof of negligence in furnishing the meal cloth which it is claimed caused the injury; and, second, if there was negligence, it was that of a fellow servant, the cake “skinner,” who placed the cloth upon the shelf in front of Burnes in that condition. Conceding that the cloth was defective, one which Burnes in the ordinary discharge of his duties should not have been called upon to handle without notice of its condition, is that fact sufficient to convict the appellant of culpable negligence? Not if it had done its duty in supplying a sufficient number of cloths in good condition with which Burnes might perform his duties; and the selection therefrom of such as were to be used was a mere detail of the operation. The rule, as stated by an eminent authority, seems to be this: The master performs his duty by using as much care in furnishing in-strumentalities for the use of the servant as [1084] a man of ordinary prudence in the same line of business would use in supplying similar things to himself, if he were doing the work, líe is not at fault without proof of notice of the defect, nor as to repairs -and replacements, until he has had a reasonable time after or constructive notice to perform his duty. The master is not expected to stand over each servant every moment to discover instantly a defect in good materials and tools caused by their use, nor is he bound to keep such close watch over the details of the work as to enable him to repair every deterioration in instrumentalities of work, resulting from a servant’s use thereof, as soon as it occurs. A master who has provided an ample supply of proper appliances, ready at hand, is not necessarily responsible to a servant for the neglect of a fellow servant to use such appliances. Shearman & Redfield on Neg. (5th Ed.) § 195. The following also support the same conclusion: Towne v. United E. G. & P. Co., 146 Cal. 766, 81 Pac. 124, 70 L. R. A. 214, 2 Am. & Eng. Ann. Cas. 905, and notes; McConnell v. Iron Works, 187 N. Y. 341, 80 N. E. 190, 10 L. R. A. (N. S.) 419, 10 Am. & Eng. Ann. Cas. 205; Reeder v. C. C. L. Co., 129 Mo. App. 107, 107 S. W. 1016; 2 Labatt on M. and S. § 621; 4 Thompson on Neg. §§ 4850-4S52. There is no contention that in this instance the master had not furnished a sufficient supply of good cloths. Burnes himself testified that the usual number kept on hand were about 55 or 60 pieces, while only 45 were required to make a run. Appellant also complains of the following charge: “If the duties of plaintiff in the handling of meal cloths used in connection with his work, and manipulating the machinery at which he was at work, required that he should work rapidly and handle said meal cloths and manipulate said machinery in a hurried manner, and that by reason of such rapid work (if it was rapid) a person situated as plaintiff was and working as he was required to work, and possessing ordinary intelligence, would not reasonably have time and opportunity to inspect the meal cloths before being used, and to see whether they were in a safe condition to use, and if you further find from the evidence that the defendant, its agents, or servants furnished a defective and unsafe meal cloth to plaintiff for his' immediate use, and that plaintiff attempted to use such defective meal cloth (if it was defective) without knowing of the defect and without having time and opportunity to inspect it, and the said defective meal cloth (if it was defective) proximately caused plaintiff to be injured as alleged, and if you further find that such defect, if any, in such meal cloth was not patent and open to a person situated as plaintiff was, then in that event plaintiff did not assume the risk, if any, in using or attempting to use said meal cloth in the condition that it was in at the time he attempted to use it, and would not be chargeable with negligence, either in attempting to use it or in failure to discover the defective condition of said meal cloth, if it was defective.” [1] This is not a correct instruction on the issue of assumed risk. The servant not only assumes all risks resulting from defects of which he knows, or must necessarily in the ordinary discharge of his duties ascertain, but those which commonly attend his employment. G., C. & S. F. Ry. Co. v. Kizziah, 86 Tex. 81, 23 S. W. 578. The duty of the master to furnish safe appliances is not absolute, but only to exercise ordinary care to accomplish that end. Hence every risk which an employment still involves, after a master has done all that is required of him for the purpose of securing the safety of his employés, is assumed by them as a matter of law.' 1 Labatt on M. and S. § 3. That principle is ignored in the charge quoted. The judgment is reversed and the cause remanded.