Bering Mfg. Co. v. Femelat

• Decision Date: 29 February 1904
• Citation: 79 S.W. 869
• Parties: BERING MFG. CO. v. FEMELAT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 869

BERING MFG. CO. v. FEMELAT.^*

Court of Civil Appeals of Texas.

February 29, 1904.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Henry Femelat against the Bering Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Baker, Botts, Baker & Lovett, for appellant. A. C. Van Velzer, for appellee.

PLEASANTS, J.

Appellee, who is a minor, brought this suit by his next friend to recover damages for personal injuries alleged to have been caused him by the negligence of the appellant. At the time he received the injuries complained of, appellee was 18 years old, and was in the employment of appellant as a common laborer in its planing and wood manufacturing mill. He began work in said mill on August 15, 1901, and continued in the performance of the duties of his employment until he was injured on September 27, 1901. On the last-named date, while engaged in removing the sawdust and pieces of wood which had accumulated beneath a table or movable platform, which was used to hold material that was being sawed with a circular saw, one of his hands was caught in the saw, and the thumb and three fingers of said hand were cut off. The petition alleges: That at the time appellee was employed by appellant he had never worked in or around machinery, nor in a sawmill or wood factory, and that he so informed appellant's manager, Henry Bering, by whom he was employed; that appellee sought employment and was employed as a common laborer or helper in and about appellant's mill. "That thereafter, and during the continuance of said employment, the said Henry Bering directed plaintiff to assist one John Devore, and to work under the direction and supervision of said Devore in such mill or factory as such common laborer or helper, and instructed plaintiff to obey the requirements and directions of said Devore at said work; he, the said Henry Bering, then and there well knowing that plaintiff was young, inexperienced in mechanical work, and knew nothing of the dangers of work around machinery. Defendant then and there gave the said Devore the control, direction, and supervision of this plaintiff at said employment and around said mill or factory, and made, constituted, and appointed the said Devore the agent and representative of defendant in the control and direction of plaintiff in said mill."

The circumstances under which appellee was injured, as set out in the petition, are, in substance, as follows: "That on the 27th of September, 1901, the said Devore, as the agent of defendant, commanded said Henry Femelat to help him (Devore) to lower a table or platform, which platform was connected with a circular saw about thirty inches in diameter; and the said Devore then and there ordered plaintiff to clean away the sawdust, sticks, and pieces of wood and refuse which had collected under said table, and which refuse prevented the lowering of the platform. That said command to perform the labor was given while said saw was in motion and revolving at a great rate of speed and with great force, and that plaintiff unwillingly obeyed the command of Devore, in reliance upon the superior experience of Devore, and in obedience to the directions given plaintiff at the time, believing that the saw was not in motion."

The negligence alleged in the petition consists in the general failure of appellant to inform and warn appellee of the dangers and hazards of working around a revolving circular saw, and especially in the failure of Devore to stop the saw before appellee was ordered to remove the sawdust, or to warn appellee that the saw was in motion, and instruct him how to remove the sawdust without coming in contact with the saw.

The appellant, in its answer in the court below, pleaded (1) general demurrer; (2) general denial, and plea of not guilty; (3) contributory negligence; (4) that plaintiff voluntarily went out of the line of his employment, and placed himself in a position of increased hazard and danger; (5) that it was immaterial whether plaintiff had ever been warned of the fact that the circular saw was dangerous, because this fact was open and notorious and patent even to the simplest intelligence; (6) assumed risks; (7) that, if plaintiff was injured because of the negligence of Devore, such negligence was that of a fellow servant; (8) that plaintiff had been duly warned with reference to his duties and the danger of coming too near the saw which caused his injury.

Appellee testified, in substance, that he was injured in the manner and under the circumstances alleged in his petition. He also testified that at the time he was employed he told Bering, appellant's manager, that he knew nothing about and had never worked around machinery; that he was employed as a helper for John Devore; that Bering placed him under Devore, and told him to obey Devore in everything, and do whatever Devore told him; that during all of the time he worked for appellant he worked with Devore, and under his directions, except when Mr. Bering or Mr. King would come around and give him orders; that prior to the time he was injured he had never worked around the saw except to carry away the material after it had been run through the saw; that he had cleaned out from under the saw before, but had always used a shovel, and had done the work when the saw was not in motion; that he thought the saw was stopped when, in obedience to Devore's instruction to clean out the sawdust, he put his hand under the table for that purpose and got it caught in the saw. On cross-examination he testified: "The smallest child would know it was dangerous to monkey with a buzz saw. I was hurt about 4:10 in the evening, and the saw had been constantly running since the noon hour. The saw is a very simple machine; as simple as I ever saw; and the first time I ever went there I knew it would be dangerous to monkey with it. The smallest child would know it would be dangerous to put their hand on it. I had worked there at the end of the table about forty days, and during all that time I had never cleaned off the frame of the saw before, nor helped clean it off. The sawdust had piled up underneath the table up to the saw." There was testimony to the effect that when the buzz saw was revolving rapidly it was difficult to tell by looking at it whether it was in motion, and that other machinery in the mill made so much noise that the noise made by the revolving saw could scarcely be heard.

Devore testified: "The plaintiff worked with me from the middle of August to the latter part of September. It was his business to do the work of a helper. On the day he was hurt he had been working there all day at the saw, carrying material backward and forward. I had run a piece of timber through the saw, and it did not cut quite deep enough. He was standing at the other end of the saw from me, and I raised the table and stooped down to knock off the dust on the end of the frame next to me, so that the table could be lowered a sufficient distance to enable the saw to cut deeper. I never told him to knock off the sawdust. It was only necessary to rake away the dust off the end next to me, because that was where it was accumulated. While I was stooping down, knocking off the dust, I heard the saw strike something and his fingers dropped off at my feet. I raised up, and he was standing there by the saw table holding his hand. I never said a word to him about cleaning off the saw or helping clean off, because it was not part of the work of a helper to clean off the sawdust during work hours. The saw was sometimes cleaned by the helper before it started up, but he would do this with a shovel and wheelbarrow. From where he reached his arm in beneath the saw table it was necessary for him to reach twenty-one or twenty-two inches in order to touch the saw. There was no necessity for his putting his hand in there as he did, as I always clean off the saw myself. When he first went to work there, I told him what he was to do, and told him he was not to have anything to do with the saw; that I was to attend to that. The saw had been running a little over three hours—since noon— at the time he was hurt, and had not been stopped. I did not stop the saw when I stooped down to clean off the sawdust from the front end of the frame, as it was not necessary to have it stopped. The lever by which the saw is stopped is behind where I stand. The saw makes a buzzing noise when it is running, and when persons are standing near the saw frame they have no trouble to hear it running. Any person standing by the saw and looking at it can tell when it is in motion. I had told plaintiff that it was dangerous to get too near the saw, and he must not monkey with it. The saw is only exposed above and below the table, and in order to come in contact with it a person must reach across the table or across the frame underneath the table at least twenty inches. It is in plain view all the time when the saw is in motion or when stationary, and every day that plaintiff worked there he worked in plain view of this saw. Mr. Bering is superintendent of the mill, and Mr. King is foreman." There was other testimony corroborating the testimony of Devore that he did not order or request appellee to assist in cleaning away the sawdust, and also testimony to the effect that appellee was...