James v. Meredith

McCLENDON, Chief Justice. Appeal from an interlocutory order changing the venue to Dallas county upon sustaining a plea of privilege to be sued in that county. The only issue the appeal presents is whether the cause of action sued upon constitutes a trespass within the meaning of R. C. S., art. 1995, subd. 9. Appellant was injured by having his hand caught in the cogs of a “boosting” engine, claimed to have been defective and dangerous, in that it was not provided with a safety guard. Appellant alleged that he was inexperienced in this class of work and was employed with full knowledge on the part of appellee’s duly authorized employing agent of his inexperience to operate and tend the engine. The evidence upon the hearing was sufficient, prima facie, to establish the material allegations of his petition. In negligence cases, the now adjudicated test whether trespass within the meaning of the venue statute exists is whether the negligence was active or affirmative in character, as distinguished from mere passive, negative, or inactive negligence. This test has been applied to a great variety of fact combinations, resulting in a large volume of adjudicated cases. An able discussion of the subject will be found in Judge Blair’s opinion in the Schlortt Case (Tex.Civ.App.) 71 S.W.(2d) 886, cited below. Had the negligence consisted solely in furnishing a dangerously defective engine, clearly, under the decisions, it would be classed as inactive, passive, or negative; and would not constitute a trespass. We conclude, however, that to employ one and set him to work in tending and operating a dangerous machine with knowledge of his inexperience constitutes an affirmative, active act of negligence, and therefore a trespass within the mean [867] ing of the venue statute. And this irrespective of whether the danger arises from some defect in the machine. The wrongful act constituting trespass consists in employing one to perform a dangerous undertaking with knowledge of his unfitness and consequent inability to guard against injury through lack of experience. The following decisions support this holding: Goodrum v. Hobbs (Tex.Civ.App.) 60 S.W.(2d) 298; Page v. Schlortt (Tex.Civ.App.) 71 S.W.(2d) 886; Dillingham v. Cavett (Tex.Civ.App.) 91 S.W.(2d) 868, 869. The order sustaining the plea of privilege and changing the venue is set aside, and the cause is remanded for trial on the merits. Order set aside; cause remanded.