Buchanan & Gilder v. Murayda

• Decision Date: 12 January 1910
• Citation: 124 S.W. 973
• Parties: BUCHANAN & GILDER v. MURAYDA.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

124 S.W. 973

BUCHANAN & GILDER v. MURAYDA.^†

Court of Civil Appeals of Texas.

January 12, 1910.

Rehearing Denied February 9, 1910.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

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

Onion & Henry, for appellants. Anderson & Belden, Perry J. Lewis, and H. C. Carter, for appellee.

NEILL, J.

This is an action brought by appellee against appellants to recover damages for personal injuries alleged to have been inflicted by the latter's negligence. It was alleged by plaintiff, in substance, that on May 5, 1908, while he was in the employ of defendants as a common laborer in the construction of a certain building in the city of San Antonio, and at work in it in the discharge of the duty of his employment, a ladder, which defendants had negligently caused and permitted to remain in an insecure position, fell from above the place where he was working upon him, seriously and permanently injuring him; that defendants had negligently caused and permitted the ladder to occupy an insecure, precarious, unfastened, and dangerous position above the place where plaintiff was at work under defendants' orders and instructions, the ladder being so dangerously and negligently placed and suspended as likely to fall at any moment of its own weight, or by reason of vibration, or the slightest interference, or shaking of the building, which was in process of construction; that while he was in the discharge of the duty of his employment, at the place where he had been ordered and directed by defendants to work, by reason of defendants' negligence in placing and permitting the ladder to be so placed and suspended in such an unsafe and dangerous position, and failing in any manner to secure and fasten the same, it fell upon him as aforestated; that he did not know whether the ladder fell of its own weight, or by reason of the vibration caused by the work progressing in the building, or by reason of some one or some object coming in contact therewith, but that the dangerous and insecure position of the ladder, placed and suspended by defendants and negligently permitted by them to so remain, directly caused or contributed to its fall and his consequent injuries, for that it could not have fallen had it been properly fastened and secured in position. The petition then alleges the character and extent of plaintiff's injuries and the damages sustained by reason of defendants' alleged negligence. The defendants, after interposing a general demurrer and denial to the petition, pleaded: (1) That, if plaintiff was injured, his injuries were not caused by them, but through the agency of independent contractors, Kuhlman & Blue, or their employés, or some person else than defendants or their employés; (2) assumed risk; (3) unavoidable and unforeseen accident which could not be anticipated by them or their servants; (4) contributory negligence; and (5) negligence of a fellow servant. The general demurrer to plaintiff's petition was overruled, the case tried before a jury, and the trial resulted in a verdict and judgment in his favor for the sum of $10,000.

As the first, second, third, fourth, fifth, and sixth assignments of error complain of the court's refusal to give, at defendants' request, certain special charges, corresponding in number to the assignments, peremptorily instructing the jury to return a verdict for defendants, we will dispose of such assignments in arriving at our

Conclusions of Fact.

The evidence so clearly shows the following facts that they may be regarded as indisputable: (1) On or about May 5, 1908, the defendants were the contractors engaged in the erection and construction of the Frost Building, in the city of San Antonio, Tex., and had been such contractors and engaged in such work for some time prior thereto. (2) The firm of Kuhlman & Blue were subcontractors of the defendants for plastering the building; and it may be assumed, for the purpose of this case, that they were what are technically called "independent contractors," over whom, nor their employés, the defendants had no control in doing their work. (3) On the same day there was a ladder in the shaft for the stairway extending from the fourth of the fifth floor, the lower end of which rested upon the fourth floor, and the other leaned against the fifth, extending several inches above. This ladder had been placed there for some time prior to said date by defendants for the use of the workmen in ascending and descending to and from the fifth floor. It was not in any way fastened at either end or made secure or stable in its position, and was liable at any time to fall or be thrown down by the vibration of the building, or by persons at work thereon or by objects handled by them coming in contact therewith. (4) The defendants knew of such instability of the ladder, of its liability to be displaced and fall down the stair shaft, and that if it should so fall, it was liable to strike and injure any of their servants at work in the shaft beneath the fourth floor of the building. (5) The plaintiff, who was on said day in the employ of defendants as a laborer on said building, having been in such employment a day and a half, was by his employers put to work in constructing the stairway in the shaft on the second floor, and, while at work there under their directions, the ladder by some cause was displaced and fell upon him and fractured his skull, and hurt his shoulder, whereby he was seriously and permanently injured, to his damage in the sum of $10,000. These facts leave for our determination the questions: (1) Whether the injuries to plaintiff were caused by negligence of the defendants; and (2) if they were, whether plaintiff was guilty of any negligence contributing to his injuries. An affirmative finding on the first of these questions will also demonstrate that plaintiff's injuries were not proximately caused by any risk assumed by him as incident to his employment, nor by an unavoidable accident, nor by the negligent act of a fellow servant. Therefore, before determining the two principal questions thus stated, we will enunciate the principles of law applicable, and make our findings of fact on such issue in the light of such enunciations.

These principles may be regarded as postulates: (1)...