No. 2830. | Tex. App. | Jan 17, 1924
The pertinent question is, Does the evidence on the part of the plaintiff show actionable negligence of appellee proximately causing the alleged hurt to J. I. Watson? The negligent acts relied upon are, as alleged: "The standards on the wagon, used to hold the pipe on the wagon, had become worn and loose and would spread at the top so that the pipe loaded on the wagon would slip down and become wedged and fastened." It does not appear by evidence that the wagon was "shackly." In respect to the allegations, the evidence on the part of the plaintiff was to the extent that the standards on the sides of the wagon were "kind of weak and would spread out and make the pipes drop down. * * * Were loose or worn kinder." And as further shown by the plaintiff, "The standards were a little loose, not very. The top pipe would spread them some, but not very much. The pipe would slip down a little, but not much, but they would not permit the pipes to become fastened at the bottom of the standards." It was while unloading the pipe "at the bottom of the standards" that J. I. Watson was, it is claimed, injured. According to the testimony of Jasper Watson, while his father was "pulling at" or "was lifting" a pipe from "the last row of tiling" on the bottom of the wagon "he just dropped down and said, `Oh, I have sprained my back.'" It is shown that the pipe, 30 inches long and 8 inches wide, was loaded on the wagon in rows placed one above another. Inferably enough pipe and no more, were placed in each row of pipe to occupy the lateral space of the wagon. And it does not appear that the lateral space at or toward the bottom of the wagon was widened by reason of the standards being "loose or worn kinder" so as to allow a pipe of so large a size as 8 inches wide to settle and cause a jam in the bottom row. It does not appear that at the time more pipes were in the *1005 bottom than customarily occupied the lateral space of the wagon. As testified by the witness, "the top pipes would spread them [the standards] some, but not much." And the inference could not reasonably be drawn that the lower rows of pipe would spread the bottom part of the standards because "the top pipes would spread them" at the top rows. For the witness affirmatively states that the top row of pipe "would slip down a little, but not much, but they would not permit the pipes to become fastened at the bottom or the standards." The fact that the deceased strained his back while "pulling at" or "lifting" a pipe would not, in the face of the evidence, authorize the further finding that the standards caused it. It is as inferable that the deceased might have wrenched his back by reason of a position he assumed at the time, or from some inherent weakness of the back. Therefore it is concluded that no actionable negligence according to the allegations is shown. It is the law that an employer does not insure the absolute safety of the employee in the work, such as unloading a simple vehicle as a wagon, and is liable only for damages for negligence.
It was not error on the part of the court to refuse to permit the plaintiff to offer in evidence the purported certificate of the secretary of the industrial accident board "that the Texarkana Pipe Works were not subscribers for an insurance policy under the Workmen's Compensation Act for the state of Texas (Vernon's Ann.Civ.St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), nor had they provided for compensation insurance and registered the same with the Industrial Accident Board for the state of Texas." The statute authorizes the issuance of "a certified copy of any order, award, decision, or paper on file in the office of said board." Article 5246 — 50 Vernon's Ann.Civ.St. Supp. 1918. A certificate of a nonexisting fact, as here offered, is not authorized. The matter sought to be proven was a matter that could be proven only by oral testimony of the witness or by depositions. Myers v. Jones,
The judgment is affirmed.