Brown v. Miller

• Decision Date: 13 March 1901
• Parties: BROWN v. MILLER.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

62 S.W. 547

BROWN v. MILLER.¹

Court of Civil Appeals of Texas.

March 13, 1901.

Appeal from district court, Dallas county; J. J. Eckford, Judge.

Action by A. R. Brown against Seth Miller and others. Suit dismissed, except as to Miller, and a general demurrer to the petition sustained, and Brown appeals. Affirmed.

J. L. Turner, W. N. Coombs, and Jeff Word, for appellant. Finley, Harris, Etheridge & Knight, for appellee.

FLY, J.

Appellant sued John Arbuckle, James N. Jarvey, W. V. R. Smith, W. A. Jamison, and Seth Miller, doing business under the firm name of Arbuckle Bros.' Grain Elevator. Afterwards the suit was discontinued as to all of the defendants except Seth Miller, and a general demurrer was sustained as to petition against him. The petition is as follows: "That heretofore, to wit, on the 31st day of March, A. D. 1899, and long prior to that time, the defendant was the apparent owner of, in possession of, running and operating, and does now so apparently own, possess, run, and operate, a certain grain elevator at Dallas, Dallas county, Texas, for the purpose of elevating and discharging grain. Your petitioner further says that on said day and date, and long prior to that time, the defendant had elevated and stored within the bins of said elevator a large quantity of cotton seed; that on said day and date the defendant was engaged and employed in the discharge and shipment of said cotton seed, and had this plaintiff in his employment, together with other employés, actively engaged, under the direction and supervision of the defendant's foreman herein, and that plaintiff and other employés were then engaged in the lowering and discharge of said cotton seed from the defendant and said foreman; that it was the duty and obligation of defendant to so manage, construct, equip, and operate said elevator for the discharge and lowering of cotton seed from the bins, and to furnish such tools and apparatus in the operation of the same, and in the discharge of the cotton seed from said elevator bins, as to protect your petitioner and other employés therein from any injury or injuries whatever that might result to them from the discharge of said cotton seed from said elevator bins while they were engaged in the discharge of the same from said bins. Your petitioner further says that, while he was engaged in the shipment and discharge of said cotton seed from said bins as aforesaid, he exercised that diligence and care that a very prudent, cautious man, under the same circumstances, would have exercised. Plaintiff further says that the defendant, notwithstanding his duty and obligations as aforesaid, wholly failed and refused to manage, construct, equip, and operate said elevator in the manner required by law, and further failed and refused to furnish such tools and apparatus in the operation of said elevator, and in the discharge and elevation of said cotton seed from said elevator, as to protect your petitioner from any injury or injuries while he was engaged in the discharge of said cotton seed as aforesaid. Your petitioner further says that the defendant and his foreman well knew that your petitioner was not experienced in the lowering and discharge of cotton seed from said elevator bins as aforesaid, and that he had never worked in or seen an elevator bin prior to the bins herein mentioned, and further knew that said elevator was not equipped for the purpose of lowering and discharge of cotton seed from said bins, and that the same was dangerous to the lives and persons of your petitioner and other employés to work therein. But notwithstanding the defendant's knowledge of the foregoing defects in said elevator, and his further knowledge of plaintiff's ignorance and inexperience as above stated, the defendant did on said day and date, and prior to that time, carelessly and negligently fail and refuse to properly construct and equip said elevator with the necessary appliances, tools, and apparatus wherewith to cave and discharge said cotton seed from its bins wherein the same had been stored. And, further, that the defendant carelessly and negligently failed and refused to furnish and provide the necessary and customary mechanical means and appliances for the proper lowering and discharge of said cotton seed, and that the defendant well knew the danger therein with the tools and appliances furnished by him. And, further, that the defendant and his foreman carelessly and negligently, and without regard for the life and safety of this plaintiff, commanded and directed him to enter the mouth of said elevator bin from below, and cave the seed, which from long standing and settling in...