236 S.W. 803 | Tex. App. | 1922
The controversy is presented in this court upon the single assignment that the court erred in not directing a verdict for the appellant. The physician who attended appellee after his injury, and appellee himself, were the only witnesses who testified upon the trial. Appellee testified that Smith nev er returned from Mississippi, and that he continued to work in the same way as when he started until the time of his injury; that at the time he commenced to work there was an old hack on the place with a broken *804
wheel; that he used appellant's wagon in hauling feed to the cattle until the rough feed had all been consumed; that appellant said, "I will take that hack and have the wheel fixed and use it in feeding cake, and we will not have to pull the wagon over the pasture"; that this was done, and that appellee began to use it instead of the wagon; that on February 12th, the day he was hurt, he had fed cattle in the west pasture in the morning and had spent part of the forenoon in feeding cattle before he started to Summerfield for the groceries and supplies; that on the way to Summerfield he took a load out for the cattle, and, after feeding it, went on for the groceries; that where he fed the cattle was between the ranch and Summerfield; that after he drove out of the pasture, and about a mile and a half on the way to Summerfield, he started down a grade, the hack ran down on the breast yoke, the baling wire used as a substitute for a ring broke, dropping the tongue of the vehicle to the ground, frightening the mules, and causing them to run away when he was thrown from the hack. Appellee further testified that he had been raised on a ranch and had lived on a ranch and farm practically all of his life, knew about the use of baling wire, and had used it for most all purposes except as a substitute for rings on neck yokes, and had never seen a ring made of it; that he had put it on hames for rings, made links in trace chains with it, and at the time he was using it on the neck yoke knew it was in strands and had used the breast yoke in that condition after he went to work for appellant; that in making repairs with baling wire he only made them for temporary purposes; he knew that the wire soon wore out and had to be replaced; that there were three employees on the ranch at the time he was injured; that the other two boys had been heading kaffir corn; that he had done no farm labor, but looked after the cattle, the fences, and general ranch work. Justice Higgins, in the case of C. C. Slaughter Cattle Co. v. Pastrana,
"The fact that this act as now construed by the courts applies to actions to recover damages for the personal injuries of, and for death resulting from personal injuries sustained by ranch laborers, while actions by farm laborers and other domestic servants are exempted from its provisions; that labor upon ranches as they are now conducted, is no more hazardous employment than farm labor, and that the producers of live stock are being caused to incur much unnecessary expense for their protection, creates an emergency," etc.
The passage of this amendment would indicate that the Legislature did not concur in the construction placed upon section 2 by the Court of Civil Appeals in the Slaughter Case. We have had some difficulty in arriving at a conclusion as to what should be a proper disposition of this appeal, but have finally decided to hold, as was held in the Slaughter Case, that a farm laborer and a ranch laborer are not one and the same thing. It appearing that appellant had as many as three employees, there being no proof that he was a subscriber under the Workmen's Compensation Act, it follows that he cannot interpose the defenses of contributory negligence and assumed risk. Vernon's Civ. St. art. 5246 —
*805The judgment is therefore affirmed.