133 S.W. 446 | Tex. App. | 1910
The appellant, by his next, friend, sued the appellee to recover damages for personal injuries received while in the-latter’s employment. He alleged as his cause-of action that he was employed by the defendant to feed meat into a large sausage-mill or grinder owned by defendant at its plant; that the mill or grinder was operated by steam, and revolved in an inclosed cylindrical iron or steel compartment, in one end of which were rotary steel knives for-cutting meats into sausage; that in the discharge of his duties of employment it was-necessary for plaintiff to place the meat in the hopper of the machine with his hands continuously while it was in operation; that on June 29, 1906, plaintiff, while in the exercise of due care and caution for his own protection and safety, in feeding meat into-the hopper, got his hand suddenly caught by the rapidly revolving feeder inside of the-machine, and his hand and arm were drawn into the machine and thereby mangled, crushed, bruised, and torn into shreds up to his elbow before the machine could be stopped; that as the result of his injuries his arm was-thereafter amputated five inches below the shoulder joint; that defendant was guilty of' negligence proximately causing plaintiff’s injuries, in that the sausage grinder was old' and worn, and the conveyor and knives in
The only assignment of error attacks the charge of the court in peremptorily instructing a verdict for the defendant. The undisputed evidence shows that the plaintiff while in the employ of defendant in feeding its sausage grinder got his hand caught in it, and, in consequence, sustained the injury alleged in his petition. He testified: “I worked for the packing company about a month and a half. I was put to work on the sausage grinder, and they showed me how to put the meat in the hopper so that the conveyor would carry it against the knives. The day before I got hurt the machine was not running good. That was the first time I noticed it not running well. It did not cut the meat, and the meat did not go out as fast as it should, and I reached the conclusion that the knives were dull. I took the plate off, and also the knife, and it was dull, and I put it back and went on using it. We would take the machine apart and put in new plates frequently. Sometimes I would do it myself. There was nothing complicated about it. Anybody could do this that had seen it done. The day before I got hurt, when the knife got dull, we had the knife and plate off. I do not think we had a new knife. I do not recall whether we did or not. The day I got hurt, early in the morning, the machine showed signs of not feeding well. The meat would not go through very well. The conveyor would carry it to the knife (and hopper), and I would have to push it down with my hands to make the conveyor catch it and carry it to the knives. I thought as soon as it backed up that it was the old dull knife — I knew it was. I knew the knives were what was the matter. I knew the knives would not cut the gristle and meat and all. Mr. Jeaneeke and I took the plates apart, and took the knives out, and I looked at the knives, and saw they were dull, and he put them back, and I went to work with it, and the meat kept backing up in the' hopper, and I kept pressing it down with my hands. I would put the meat in there and press it down with my hands. Always used my hands. I had never seen anything else. I never saw a stick around there. I would press it down, and I knew that, if my hand came in contact with the conveyor, it would catch my hand where the conveyor caught the meat. I saw the conveyor catch every piece of meat that had gone through the conveyor for three weeks, and I stood right there where I could see that conveyor catch the meat and carry it to the knife, and I knew if I ever got my hand to where the conveyor caught the meat it would catch my hand. I knew that as well as anybody living. I knew it as well as Mr. Jeaneeke, and as well as Mr. Seheiler (the foreman). I knew it was dangerous. Anybody with the simplest intelligence would know if you put your hand in a sausage mill it would be dangerous if it came in contact with the knives. The conveyor is what caught my hand, and it pulled it into the machine. At the time that the conveyor caught my hand and dragged it in there I was shoving down the meat. I had not filled the machine up. It was only about a third full. Mr. Jeaneeke had shown me how to run the machine. He said if I ever got my hand caught in there I would get it cut off. If he had not told me, certainly I would have known that. Any one would.” It thus appears from plaintiff’s own testimony his injuries were caused from a risk which he assumed as incident to his employment, for which defendant is not liable (Maxwell v. Wallan, 121 S. W. 182; Ladonia Company
It is well settled that a master is not liable for an injury to a servant who knows that the machinery he is operating is defective and dangerous, who, though protesting, continues to use it, in the absence of an express promise by the master to repair, or have repaired, the defect. Hillje v. Hettich, 95 Tex. 325, 67 S. W. 90; T. & N. O. Ry. v. Bingle, 91 Tex. 287, 42 S. W. 971; G„ H. & S. A. Ry. Co. v. Drew, 59 Tex. 10, 46 Am. Rep. 261; St. Louis, etc., Ry. Co. v. Kern, 100 S. W. 971.
In view of the undisputed evidence in this case, the peremptory instruction was proper. Therefore the judgment is affirmed.