209 S.W. 389 | Tex. Comm'n App. | 1919
The plaintiff, Henry C. Gam-mage, sued the defendant, the Gamer Company, for damages on account of personal injuries received by him while operating a machine for cutting leather washers. It is not necessary to describe the machine and the manner of its operation further than a» follows;
Immediately in front of where the operator stands there is a perpendicular iron shaft which, when the machine is in motion, works up and down like a sewing machine needle. In the lower end of the shaft is a detachable cutter, fastened in by means of a small pin or key. The leather, from which the washers are cut, is placed under the cutter on a horizontal die having a circular hole in it directly under the cutter, measuring the same in circumference as the cutter. The downward stroke of the shaft presses the cutter through the leather and on through the hole in the die, thus cutting the washers. There are two ways of starting the machine, and only two, when it is properly constructed and in good condition: First, by shifting a bolt from a loose pulley to a tight pulley; second, by moving a balance wheel. The loose and tight pulleys are close together on the same shaft, and the belt is shifted from one to the other by the operator in starting and stopping the machine, by means of wooden lever just behind the operator and within his reach. The balance wheel' is located a few feet from where the operator stands, about two feet above and in front of him.
The plaintiff at the time he entered the employ of the defendant was inexperienced as a machinist. It was known to the defendant that he had not operated, or worked around, machinery of any kind prior to that time. When injured he had been working for the defendant nine days, and had operated the machine about seven days. On the occasion of the plaintiff’s injury, and immediately before the accident causing it happened, the machine was standing idle. The die was in position for cutting washers, and the lower end of the shaft was at rest a few inches above the die. The plaintiff had just inserted the cutter into the end of the shaft, holding it in position with his left hand, and was in the ' act of fastening the cutter in with the key, when the machine suddenly started, amputating three of the fingers of his left hand.
The allegations of the petition material here are substantially that the plaintiff was an inexperienced workman with machinery, as was known to the defendant; that the ma
^e answer consisted of a general denial, plea of contributory negligence, and assumed risk.
The trial was before a jury, and resulted in a verdict for the plaintiff for $4,000. The Court of Civil Appeals reversed and rendered the judgment in favor of the defendant. 162 S. W. 980.
“We decided this case upon what we conceived to be a universal and simple rule of law; that is, ‘There must be evidence fairly tending to show either that the defendant knew of the existence of thé defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been discovered before the accident.’ ”
' “While the naked fact that an accident has happened may be no evidence of negligence, yet the character of the accident, and the circumstances in proof attending it, may be such as to lead reasonably to the belief that without negligence it would not have occurred.”
The principle underlying the liability of the defendant in such cases, and referred to in the Washington Case, supra, is frequently stated as follows;
“Where the particular thing causing the injury has been shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.”
“I could not say whether the Gamer Company had a man regularly employed to oil its machinery. * * * I could not say about that. My attention was not called to any part or any defect in that machinery. I was never directed by any one connected with the Gamer Company to make any inspection of the machinery at any time; there was nothing ever said to me about inspecting the machinery. Nothing was ever said to me by any one about being careful in the use and operation of that machinery.”
There is no testimony that Mr. Gamer, the manager, or any one else, made an inspection of the machine at any time for the purpose of ascertaining its condition. Mr. Gamer’s testimony, and the only testimony, in fact, bearing on this question, is as follows:
“As to whether or not the shaft, pulley, machine, etc., were oiled from day to day, I state that we had a man to make a practice to oil every day; it was his job to do oiling every morning. From my observation of the machine from day to day, I can state that it was kept in first-class condition with reference to the oil prior to the accident — it was.”
The witness, on being recalled by the plaintiff, testified;
“I said that I had a man regularly employed to oil up this machine; ⅜ * * had him regularly when he was there. It was his duty to keep the'machine oiled. We had a man named Mike; I do not know what his other name was. ⅜ * ⅜ jje was an irishman all(j p <j0 not know what his other name was.”
The foregoing statement and testimony showing the ownership of the machine, whose duty it was to inspect and keep it oiled, and tending to show the degree of care used in these particulars, serve to differentiate this case from T. & P. Ry. Co. v. Endsley, 103 Tex. 434, 129 S. W. 343, cited by the Court of Civil Appeals. Mr. Gamer testified also that the machine was in good condition prior to the time of the plaintiff’s injury and at all times thereafter, and that nothing was done to it in the way of repairing until about two years after the accident.
The defendant made no attempt- to show the degree of care exercised in caring for the machine, or that it was ever inspected, other than is shown by the testimony of the manager quoted above. No evidence was offered by the defendant to explain how the accident occurred that did not, in effect, controvert the conclusion that the machine was defective, and present a conflict with the plaintiff’s testimony. Certainly the testimony is not conclusive that reasonably careful inspections were made or that, the machine was at all times oiled; nor could it be held, as a matter of law, that under the circumstances a defective condition of the machine might not result in personal injury to the one operating it. Washington v. M., K. & T. Ry. Co., supra. The evidence as a whole raised the issues of whether the machine was defective, and whether, if the defendant had used reasonable diligence to inspect the machine or ordinary care to keep it in good running condition, the plaintiff would have been injured. These issues were for the jury, and, together with others, were submitted under a proper general charge. The verdict was for the plaintiff and is supported by evidence. Washington v. M., K. & T. Ry. Co., 90 Tex. 315, 38 S. W. 764; McCray v. Ry. Co., 89 Tex. 170, 34 S. W. 95; G. C. & S. E. Ry. Co. v. Hayden, 29 Tex. Civ. App. 280, 68 S. W. 530; Texas & St. L. Ry. Co. v. Suggs, 62 Tex. 323.
The judgment as recommended by the Commission of Appeals is adopted; and will be entered as the judgment of the Supreme Court.
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