Buchanan & Gilder v. Blanchard

• Decision Date: 13 April 1910
• Citation: 127 S.W. 1153
• Court: Texas Court of Appeals
• Parties: BUCHANAN & GILDER v. BLANCHARD.<SMALL><SUP>†</SUP></SMALL>

127 S.W. 1153

BUCHANAN & GILDER v. BLANCHARD.^†

Court of Civil Appeals of Texas.

April 13, 1910.

Rehearing Denied May 11, 1910.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Frank Blanchard against Buchanan & Gilder. From a judgment for plaintiff, defendants appeal. Affirmed.

Onion & Henry and A. McCloskey, for appellants. James Routledge and J. R. Norton, for appellee.

NEILL, J.

Suit for personal injuries, brought by appellee against the appellants, to recover $20,000 damages for the loss of his eye, alleged to have been caused by the appellants' negligence.

The petition alleges that on January 18, 1909, the plaintiff was in the employ of defendants as an iron and steel worker in the construction of the steel framework of what is known as the Gibbs Building, in the city of San Antonio, Tex., and while so employed was instructed by his foreman, Craig, to cut off the head of a rivet, in conjunction with another employé of defendants, and that for the performance of said work plaintiff was furnished by his foreman with an iron maul and with a steel-cutting implement called a "cutter," and while engaged in the performance of his work plaintiff was holding said cutter, while his coemployé was striking the same, pieces of splinters or slivers of steel, by reason of the force of the blows, were broken off the head of the cutter, striking him and causing the loss of his eye, destroying the sight and ball thereof; that such injury was caused by the failure of defendants to provide plaintiff with a reasonably safe and sufficient cutter, in that the cutter furnished was defective, insufficient, and unsafe, and that the steel composing the head of the cutter had been crushed and crystallized, was old, weak, liable to break in the performance of the ordinary work for which it was intended, had been tempered too hard, and was exceedingly brittle, all of which was known, or by the use of ordinary care could have been known, by the defendants; but that plaintiff did not know the unsafe, insufficient, and defective condition of the same.

The defendants answered by a general denial, pleas of assumed risk, contributory negligence, and negligence of plaintiff's fellow servant, and especially pleaded that plaintiff was experienced in the work he was doing at the time he was injured, and that, if said steel cutter was in the condition described by plaintiff, then by the exercise of ordinary care, he could and should have known of such defects and danger, if any.

The case was tried before a jury, and the trial resulted in a verdict and judgment in favor of plaintiff for the sum of $2,500.

Conclusions of Fact.

It is undisputed that the plaintiff, while in the employment of defendants, as alleged, was injured in the way and manner averred and described in his petition. There is no question, either, about the steel cutter he was using being in the defective condition alleged, and that such defective condition was the proximate cause of his injuries; nor does the evidence tend in the least to prove negligence of a fellow...