Howard Oil Co. v. Farmer

Stayton, Associate Justice.— The record shows that the appellee entered the service of the appellant on the morning of the day on which he was injured; that the use of the machinery which he was operating and the care of the same was attended with danger, and that he was di [305] rected by the superintendent of the business of appellant to perform a service in reference to the machinery which was attended with great danger. There is a conflict of evidence as to whether or not the appellee was cautioned in regard to the dangers attending the doing of the act which he was directed to perform and in the doing of which he received the injury upon which this suit is based, as well as to whether or not the danger was open to the' observation of the appellee. Under this state of the record, a jury having found a verdict in favor of the appellee upon evidence sufficient to sustain the verdict, it only becomes necessary to determine whether or not there was error in refusing to give the second charge asked by the appellant. The charge asked was as follows: “It is the duty of one putting his hand on dangerous machinery, while in operation, to look and see where he is putting it; and if you believe from the evidence that at the time plaintiff was hurt, he knew or had opportunity to see, in the performance of his duties, the hole in the bottom of the heater, and knew that the arms were continually revolving on the inside, and that he put his hand under the heater without looking where he was putting it, and that if he had looked he would not have been injured, then the plaintiff is not entitled to recover, and you will find for the defendant.” The evidence shows that the appellee was a man inexperienced in the operation of the machinery. The superintendent testified that, “I knew he was a green hand, and I knew it was dangerous to wipe the plate with a rag, and yet I told him to do so.” Even if the appellee did know that there was a hole in the bottom of the heater, and also knew that the arms were continually revolving on the inside, yet it does not follow that he knew that the revolving arms were in such close proximity to the lower plate of the heater as to render dangerous the [306] performance of the act which he was directed to do; and he had the right to believe that he could safely perform the act by the means indicated to him when directed so to do by an experienced man, the representative of the appellant. Under such circumstances he was not required to make such examination into the danger of the operation as he would have been under other circumstances. There was nothing in the outer appearance of the machinery to indicate danger in doing the act directed to be done, and the evidence was conflicting as to whether or not such knowledge of the dangerous character of the machinery could be got by one in the ordinary operation of the same, or without a careful examination of the interior thereof when empty. There should be some apparent danger before such exacting diligence should be required of an employee in ascertaining the danger attendant upon doing an act, as under the instruction asked would be incumbent upon him. It is not behoved that there was error in refusing the charge asked, and especially so when the court hád in the main charge instructed the jury, under the facts, more accurately in regard to the care necessary upon the part of the appellee. ' The court had instructed the jury as follows: “If plaintiff knew of the danger, and had notice of the character of such danger, negligently or carelessly put his hand in a hole in the bottom of the heater, or if he was specially cautioned about the danger of wiping the bottom of the heater, and he disregarded such caution, then he cannot recover, for in such case he contributed to the injury; and, when that is the case, the law will not permit a recovery by the person injured. “If you believe from the testimony that during the time the plaintiff was employed at the heater he could [307] have seen and known by ordinary observation in the performance of his duty, that there was a hole in the bottom of the heater at or about the place where he received the injury, and that the arms were constantly revolving on the inside and over the hole near enough to the bottom to be almost certain to endanger his fingers if he put them in the hole, then, for the purposes of this case, it is the same as if he had actually known it; for one is held to know whatever it is their duty to know when he has had opportunity of knowing it.” [Opinion delivered February 24, 1882.] This charge was as full and as liberal to the appellant as under the facts could have been given, and in a less objectionable form than the same had been asked. If there had been no objection to the charge asked, the charge given being clear and full, and upon the same point, made it unnecessary to give it, and the refusal so to do was not error. It is claimed that the verdict was contrary to the evidence, and that therefore the judgment should be reversed. There was evidence sufficient to sustain the verdict, and there was also evidence upon which the jury might have found a different verdict, and this presents just/the case in which this court has steadily refused to reverse. There being no error in the judgment it is affirmed. Affirmed.