Brown Cracker & Candy Co. v. Johnson

• Decision Date: 08 March 1913
• Citation: 154 S.W. 684
• Parties: BROWN CRACKER & CANDY CO. v. JOHNSON.
• Court: Texas Court of Appeals

154 S.W. 684

BROWN CRACKER & CANDY CO. v. JOHNSON.

Court of Civil Appeals of Texas.

March 8, 1913.

Rehearing Denied March 15, 1913.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Thomas A. Johnson against the Brown Cracker & Candy Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Meador & Davis, of Dallas, for appellant. Cockrell, Gray, Thomas & McBride, of Dallas, for appellee.

RASBURY, J.

Appellee sued appellant for damages for personal injuries, and upon trial before jury recovered verdict followed by judgment by the court, and from which this appeal is taken.

Appellee alleged that he was a baker, and was employed as such by appellant in its cracker and candy factory, and that while engaged in the performance of his duties, and while preparing to remove dough from a machine known as a dough mixer, operated by steam or electricity presumably, his hands became entangled in cogs on the inside of the mixer, whereby two of the fingers of his left hand were dismembered, and the others bruised and stiffened, the bone broken, and his left hand rendered almost worthless. The proximate cause of the injury was alleged to be failure of appellant to furnish reasonably safe lights; it being further charged that appellee's work was done under artificial lights, and that the lights furnished were dim, uncertain, and out of repair, and were so within the knowledge of appellant, whose officers had promised to repair the defects, and upon which promise appellee relied and continued in his work, but who nevertheless, while in the exercise of caution and while acting under the immediate instructions of appellant's foreman, was injured as alleged. Appellant answered by general and special demurrers, general denial, and pleas of assumed risk and contributory negligence.

The first assignment of error asserts that the verdict should have been set aside and new trial awarded for the reason that it was alleged by the petition that the cogs which injured appellee's hand were on the inside of the mixer, whereas the evidence disclosed that the cogs were on the outside of the machine. The petition did allege the cogs to be inside the mixer, and the evidence does show as matter of fact the cogs were on the outside. We do not think, however, that the variance between the pleading and the proof is a material variance. To have been material it must have tended to mislead and surprise appellant upon trial, and if it did not have that effect then the variance was immaterial. McClelland v. Smith, 3 Tex. 210; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Railway Co. v. Evans, 78 Tex. 369, 14 S. W. 798; First National Bank, etc., v. Stephenson, 82 Tex. 435, 18 S. W. 583; Houston Light & Power Co. v. Hooper, 46 Tex. Civ. App. 257, 102 S. W. 133. Under the pleading and the evidence in the case the position of the cogs was not a material issue. On the contrary, the material issue was whether appellant was negligent in furnishing appellee defective lights to work under. If appellant was negligent in respect to the lights, and defective lights were the proximate cause of his injury, it was immaterial whether he was injured by placing his hands upon cogs inside or outside of the mixer, since the situation of the cogs could not have misled appellant as to the negligence charged and the issue to be met.

The cases cited sustain the rule announced. They go further and hold that when testimony at variance with the pleading is offered on trial it is then the duty of the complaining party to make known his surprise and make application to withdraw his announcement of ready. Here no surprise is urged, no objection made to the introduction of the testimony, no charge requested for the purpose of correcting any injury or prejudice done. We conclude the point taken is well within the cases cited, and for that reason the assignment is overruled.

Appellant's second assignment of error complains of the refusal of the trial court to peremptorily direct a verdict for the defendant. Under this assignment appellant argues that appellee assumed the risks of his employment at the time of his injury, and that the evidence is insufficient to sustain the findings of the jury upon any other theory. A discussion of whether appellee assumed the risks incident to his employment is unnecessary, since the jury was told at the request of appellant that he did. The court went further, and eliminated every question in the case, except whether or not the lights and machinery at the factory were in good repair, and told the jury that appellee could not recover in any event unless appellee personally and directly requested that the machinery and lights, or either, be repaired, and that appellant made a specific, direct, and unequivocal promise to do so, and that appellee continued in appellant's service on account of such promise, and had reasonable grounds to expect the promise would be fulfilled. By another special charge, given also at request of the appellant, the court further circumscribed the grounds of recovery by telling the jury that appellee knew that the cogs on the mixer were exposed, knew the lights were defective, and made complaint of their condition the day before he was injured and, such being the undisputed facts, appellee could not recover unless the jury believed from the evidence that appellant, after receiving notice of the condition of the lights, etc., promised to repair same.

Thus, it will be seen that under the charge of the court it becomes our single duty in considering this assignment to ascertain if the testimony was sufficient to take to the jury the issue of whether or not there was a promise to repair the lights. On that question the following is practically all the testimony:

Appellee, Johnson, testified: "The only light I had in that room that morning was the little incandescent light over Bound's machine, and the arc light over my machine, which went out when I got hurt. I noticed that that was all. * * * When Drew (the foreman) came in I had started back then to throw this jam out. * * * He examined it, and I says, `Shall I throw it out?' and he says, `Yes.' * * * So I turned around and started around the east end of the mixer to do it. * * * I don't know whether I slipped or stumbled. * * * The first thing I remember I got caught this way. * * * I was familiar with the working of the machinery and how it was located in that room. I knew it was there, but of course I couldn't tell where it was as well in the dark as when I could see. Just when the lights went out and I says, `Shall I throw it out?' and he says, `Yes.' We don't have much time to waste, and I started to throw it out and fell in cogwheel. I walked back from Drew in the aisleway and—here is where I...