Blossom Oil & Cotton Co. v. Poteet.

• Decision Date: 19 April 1911
• Citation: 136 S.W. 432
• Parties: BLOSSOM OIL & COTTON CO. v. POTEET.
• Court: Texas Supreme Court

Page 432

136 S.W. 432

BLOSSOM OIL & COTTON CO. v. POTEET.

Supreme Court of Texas.

April 19, 1911.

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

Action by Gracie Poteet, by her next friend, against the Blossom Oil & Cotton Company. Judgment of the Court of Civil Appeals for plaintiff (127 S. W. 240), and defendant brings error. Reversed, and judgment entered for defendant.

Moore & Park, for plaintiff in error. Burdett & Conner and J. S. Patrick, for defendant in error.

RAMSEY, J.

This case presents a question at once novel, difficult, and important. That it may be understood, we make the following liberal quotation from the opinion of the Court of Civil Appeals, which both outlines the contentions and claims of the respective parties, and also gives in some detail and particularity the facts on which a recovery was by that court upheld:

"Appellant operated a cotton seed oil mill. Its seedhouse was situated about 50 feet from its main building, and was 60 feet wide north and south by 200 feet long east and west. Near the center of the seedhouse, along the floor thereof for a distance of about 100 feet from its west end, appellant had constructed a box about 12 inches in height and about 10 inches in width. In this box was a spiral or screw-shaped piece of iron or steel about nine inches in diameter, which, revolving, conveyed seed placed in the box to the cleaning machine, and then to the mill in the main building. The covering for the box was in sections—each five feet in length, it seems—and was so arranged that desired openings through which to feed the iron conveyer inside the box could be made, leaving other portions of the box covered. Besides the conveyer just referred to and others, there was in the seedroom a sand screen and shaker and fan, three elevators, and shafting, belting, and pulleys, located near the floor and unincased. There also was in the room a quantity of cotton seed. March 8, 1907, appellee Gracie Poteet, then about 4½ years old, stepped into the box described above, while the iron conveyer referred to was revolving therein, and as a result her left foot was cut off, and her left leg was so torn, crushed, and injured as to make it necessary to amputate same about midway between her knee and hip. In her petition appellee, who sued by her next friend, after alleging that the seedroom, because of the machinery and cotton seed therein, was an attractive place to children of her age, and that she had been invited and permitted by appellant's employé in charge of the room to go into same, further alleged: That `she was a small child, about 4½ years of age, too young and inexperienced to understand or appreciate the dangers to her of being injured while in defendant's aforesaid seedroom, and about its machinery therein. On that day plaintiff was carried by her mother, the wife of the aforesaid B. F. Poteet, to defendant's said oil mill plant and into the seedroom where her father was at work in charge and control of said seedroom in defendant's employ. That the purpose of her visit, on that occasion, as it had been on many days prior thereto, was to carry her father's dinner for him to eat, and that her mother might perform his work while he was eating the same. While there plaintiff was permitted to wander about and over said seedroom among defendant's machinery, and on this occasion had passed to the opposite side of the seed conveyer from where her mother was shoveling seed into the conveyer and performing the work of B. F. Poteet, an employé of defendant, and said B. F. Poteet knew where she was, and what she was doing. That the cotton seed were piled high where plaintiff's mother was shoveling them into the conveyer, and suddenly they caved in on her up to her waist, and she called aloud to her husband to run to her assistance and to help her prevent the conveyer from choking up, and plaintiff hearing her and seeing her father run to her mother, and not appreciating the danger to herself in doing so, ran after her father, and attempted to pass over the seed conveyer, and stepped upon what appeared to be a solid foundation, over the same, made by a plank placed on the top of said conveyer, when suddenly her foot passed through an opening in said plank which had been obscured by an accumulation of cotton seed, and was caught by the large spiral-shaped steel piece of machinery, or screw, in said conveyer, and was injured' as complained of. She further alleged that at the time when she `ran after her father to her mother and towards said hole in said seed conveyer said B. F. Poteet knew of the dangerous condition of the same, and that said hole was in said conveyer, and that it was deceptively covered with seed, and also knew that plaintiff was following him towards said hole, and could by the use of proper care have prevented her from stepping into said hole, but negligently failed to use proper care to prevent her from stepping into it.' Appellee further alleged that the injury suffered by her was the result of appellant's negligence in failing to properly guard and cover the conveyer, in failing to keep cotton seed removed from it so as to expose the opening she stepped into, in permitting her to be and remain in the seedroom and in failing while she was there to use proper care to prevent injury to her. In its answer, after excepting to the petition and denying generally the allegations therein, appellant specially denied that appellee was in its seedroom by its invitation or consent, or by the invitation or consent of any of its employés authorized to give same; denied that Poteet at the time was in charge of the seedroom in the sense that he had authority to invite appellee to enter the seedroom, or permit her to remain there; denied that its machinery, etc., was attractive to children, or that its attractiveness caused appellee to be in its seedroom, and denied that it had been negligent in any particular in the construction of the seed conveyer, etc.; and averred that said seed conveyer had been constructed and maintained with due care and skill, and was not dangerous to those whose duties required them to be in the seedroom, that appellee had been repeatedly warned not to enter said seedroom, and that her mother and father had been repeatedly instructed not to bring or permit her to be in said room, and that the injury she suffered was an accident for which it was not responsible, and was...