Beaumont, S. L. & W. Ry. Co. v. Schmidt

• Decision Date: 19 June 1934
• Docket Number: No. 1489-6216.,1489-6216.
• Citation: 72 S.W.2d 899
• Parties: BEAUMONT, S. L. & W. RY. CO. v. SCHMIDT.
• Court: Texas Supreme Court

Page 899

72 S.W.2d 899

BEAUMONT, S. L. & W. RY. CO. v. SCHMIDT.

No. 1489-6216.

Commission of Appeals of Texas, Section B.

June 19, 1934.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by J. H. Schmidt against the Beaumont, Sour Lake & Western Railway Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals [45 S.W.(2d) 734], and defendant brings error.

Judgments affirmed.

Andrews, Streetman, Logue & Mobley, Robert F. Campbell, and T. A. Slack, all of Houston, for plaintiff in error.

Fulbright, Crooker & Freeman, John H. Crooker, and M. C. Chiles, all of Houston, for defendant in error.

SMEDLEY, Commissioner.

Defendant in error was employed by plaintiff in error as telegraph operator and clerk at its station in Huffman, Tex., on its line of railway. It was a part of his duties, for which he received extra compensation, when requested by the agent in charge of the station, to operate an engine owned by plaintiff in error and used for pumping water into a tank. Part of the machinery constituting the engine and pump was a large cogwheel about four feet in diameter, which, when the engine was in gear, was meshed with a smaller cogwheel on a revolving shaft. On the shaft and revolving with it was a clutch operated by a lever to throw the engine in or out of gear. Two links on each side of the shaft and forming a part of the clutch mechanism also revolved with the shaft, and these links, which were about six inches long, joined like a hinge, being held by pins extending through them. The pins were made to be held in place by cotter keys, but at the time of the injury of defendant in error finishing nails about two and three-fourths inches long were in the pins instead of cotter keys, and protruded out from the point where the two links came together.

When the engine was running, but not in gear, as it was usually run when first started and until it "warmed up," the links lay almost flat, rotating with the shaft, but, when the engine was put in gear, the links, still rotating, were elevated to about a sixty-degree angle, standing out three or four inches farther from the shaft, and each pair of links forming an inverted V, at the apex of which were the protruding nails. On account of the rapidity of the revolutions, the change in the links from the flat to the sharp position was not easily discernible. No guards were provided for the cogwheels, the shaft, or the clutch.

Defendant in error went to the pumphouse to oil the engine, stopped it, oiled it, and started it again. As he was leaving, he turned to see whether an oil cup over the cogwheel was dripping, and, not being able to see the cup from his position, walked around the shaft and stood in the L formed by the shaft and the large cogwheel. After observing that the cup was dripping, he turned to leave, when his sweater was caught by the protruding nails and wound around the shaft. This jerked him down and caused his right arm to fall into the cogwheels, which severed it above the elbow.

Defendant in error had been employed at this station for about six and a half years and had operated the engine many times. He was a telegraph operator by trade and not a trained or experienced mechanic. Repairs necessary to be made on the pump and engine were made by plaintiff in error's water service repairman. Defendant in error testified that at the time of his injury he did not know that the links extended farther out from the shaft when the engine was in gear, and did not know that there were nails in the pins holding the links together.

The jury, in answer to special issues, found that plaintiff in error was negligent in allowing nails to be used in place of cotter keys for holding the links of the clutch, that it was negligent in allowing the nails to protrude in such manner that the same would catch on objects with which they came in contact, and that it was negligent in failing to warn defendant in error of the dangers that might reasonably be encountered from the revolving clutch. Judgment in favor of defendant in error for $20,000, the amount of damages assessed by the jury, was affirmed by the Court of Civil Appeals. 45 S.W.(2d) 734.

The principal contention made by plaintiff in error is that there is no evidence of any negligence on the part of plaintiff in error in respect to any of the issues in the case. Propositions are presented to the effect that no negligence was shown because there was no testimony that the nails were more dangerous than cotter keys or protruded farther than was necessary or farther than cotter keys would have protruded, because there was no evidence that by the exercise of care the nails or cotter keys could have been so arranged that they would not have caught on objects with which they came in contact, and because there was no evidence that plaintiff in error knew that the nails were protruding.

The first question is whether there is any evidence sufficient to warrant a reasonable belief that the employer failed to exercise ordinary care in furnishing reasonably safe appliances for carrying on the work. Washington v. M., K. & T. Ry. Co., 90 Tex. 314, 38 S. W. 764. "To authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it." Lee v. I. & G. N. R. R. Co., 89 Tex. 583, 36 S. W. 63, 65.

It is to be remembered that the duty under consideration is the important nondelegable one imposed upon the master to exercise care both in supplying safe and suitable appliances and in maintaining them in safe condition, so that it shall be reasonably probable that injury will not occur in the exercise of the employment. Fort Worth Elevators Co. v. Russell (Tex. Sup.) 70 S.W.(2d) 397; Morton Salt Co. v. Wells (Tex. Sup.) 70 S.W. (2d) 409; Ebersole v. Sapp (Tex. Com. App.) 208 S. W. 156; Choctaw, etc., Ry. Co. v. McDade, 191 U. S. 64, 24 S. Ct. 24, 48 L. Ed. 96; Labatt's Master and Servant (2d Ed.) §§ 917, 1009; 29 Texas Jurisprudence, pp. 152, 177; 18 R. C. L. pp. 587, 737. The servant, so long as he exercises ordinary care for his own safety, has the right to rely upon the master's performance of his duties and to presume that the tools, appliances, and places are fit and suitable. 18 R. C. L. pp. 689, 690; 29 Texas Jurisprudence, pp. 211-213; G., H. & S. A. Ry. Co. v. Garrett, 73 Tex. 262, 13 S. W. 62, 15 Am. St. Rep. 781; Philadelphia, etc., Ry. Co. v. Marland (C. C. A.) 239 F. 1.

Looking to the facts in the light of these principles, we have reached the conclusion that there is evidence from which it may reasonably be inferred that plaintiff in error was negligent in the performance of its duties. We do not have the ordinary case of exposed or unguarded cogwheels, shafts, or other moving machinery where the danger in coming in contact is apparent or obvious. The dangerous instrumentality which caused the injury is at least somewhat unusual and peculiar. The links, joined by a pin or bolt held in place by protruding ordinary finishing nails, a makeshift, and rapidly revolving with the shaft, stood out from the shaft in the form of an inverted V with the protruding nails at the apex of the V, when the engine was running in gear, in such way that the links, or the points of them, were about three or four inches farther away from the shaft than when the engine was running out of gear. The rapidity of the revolutions obscured this change in the position of the links, which rendered greater the danger in going near the revolving shaft. And this greater danger was enhanced by the presence, at the points of the rapidly revolving extended links, of protruding finishing nails where there should have been cotter keys. It is fairly to be inferred that an ordinarily prudent employer exercising reasonable care for the protection of an employee would not expose him to such hazard.

While the general rule is that the master is under no duty to protect with guards moving parts of machinery, such rule is not applicable where there are special circumstances enhancing the danger. 29 Texas Jurisprudence, p. 227, and cases cited; note 36 A. L. R. p. 1477, and following. And see 18 R. C. L. pp. 591, 592, where the statement is made that the tendency in the late cases is to hold the employer negligent in failing to guard all dangerous appliances. The danger ordinarily present in rapidly moving parts of machinery was certainly enhanced by the peculiar construction and operation of the clutch which has been described and by the presence of protruding nails.

As to the contention that the evidence does not show that the nails protruded farther than cotter keys would have protruded, or that cotter keys could have been arranged so that they would not have caught on objects with which they came in contact, we think it is reasonably concluded from the facts in evidence as to the construction and operation of the clutch that ordinary prudence would direct an employer to use, instead of pointed protruding nails to hold the pins in place, cotter keys so short or so rounded at their ends or bent back so flat against the pins that they would not protrude for any appreciable distance and would not readily catch on objects near them.

The absence of proof as to how long the nails were in use in the clutch or by whom they were placed there does not absolve plaintiff in error, for the nails at the time of the injury were actually in use as a part of the clutch, and responsibility for the character and condition of the machinery rested upon plaintiff in error, not upon defendant in error. This is not a case like a number of the authorities relied upon by plaintiff in error where the cause of the injury was unexplained or where the particular thing that brought it about was not in the control of the employer but may have been the result of the act of a third person or of the injured employee...