Burrell Engineering & Construction Co. v. Grisier

• Court: Texas Supreme Court
• Writing for the Court: Cureton
• Citation: Burrell Engineering & Construction Co. v. Grisier, 240 S.W. 899 (Tex. 1922)
• Decision Date: 03 May 1922
• Docket Number: (No. 3055.)
• Parties: BURRELL ENGINEERING & CONSTRUCTION CO. v. GRISIER.

Page 899

240 S.W. 899

BURRELL ENGINEERING & CONSTRUCTION CO. v. GRISIER.

(No. 3055.)

Supreme Court of Texas.

May 3, 1922.

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

Action by Fred Grisier against the Burrell Engineering & Construction Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (189 S. W. 102), and defendant brings error. Affirmed.

Huff, Martin & Bullington, of Wichita Falls, for plaintiff in error.

W. F. Weeks, of Wichita Falls, for defendant in error.

CURETON, C. J.

The plaintiff in error, as a contractor, was constructing a building for the Wichita Falls Mill & Elevator Company in September, 1914. An elevator was constructed at the side of the building, for the purpose of hoisting material used in the construction. The car upon which the material was lifted was raised and lowered by means of a cable, the movement of which was controlled by an engine. The cable wound around a drum, and the engineer, by means of a lever operated by his foot, controlled the speed of the drum, and, consequently, that of the elevator. Defendant in error was employed by the construction company as a ground foreman, in charge of other employees, who prepared and mixed the material for making the concrete used in the construction of the building. When the concrete was ready for use, it was placed in a vehicle used for the purpose, rolled upon the elevator, and hoisted to the men who were pouring it into the molds. Defendant in error, in the course of the performance of his duties, went to the top of the building upon the elevator on one of the trips when it was carrying concrete, and, after attending to the business for which he was called, started down upon the elevator, when it fell with him a distance of some 30 or 40 feet, resulting in his injuries. He instituted suit against the company, a trial was had before a jury on special issues, and a judgment entered in his favor for $3,000. The case was appealed by writ of error to the Court of Civil Appeals, where the judgment of the trial court was affirmed. 189 S. W. 102. The case is before this court on writ of error.

In answer to special issues, the jury found that plaintiff in error did not exercise ordinary care to furnish defendant in error a reasonably safe place to work, or a reasonably safe means to get to and from the different places where his duties called him; that it did not use ordinary care to keep the elevator and hoisting engine in a reasonably safe state of repair; and that plaintiff in error's negligence so found was the proximate cause of defendant in error's injuries. The jury exonerated defendant in error from contributory negligence.

It is insisted that the evidence wholly fails to show any negligence proximately causing the injury to plaintiff. We cannot agree with this contention. The evidence not only raised the issue of negligence which proximately caused the plaintiff's injury, but the evidence of the negligence is undisputed, ample, and sufficient, and so clearly related to the accident as to not admit of any doubt as to the cause of the fall of the elevator. In view of the statement of the evidence in the opinion of the Court of Civil Appeals, it is unnecessary for us to make any résumé of the testimony on this issue.

Error is assigned to the effect that the judgment for $3,000 in this case is excessive. The undisputed evidence in the record shows that defendant in error was painfully and seriously injured, and that certainly some of his injuries were of a permanent nature. The amount to which defendant in error was entitled was clearly a question of fact. It is not our province to set aside the verdict of a jury where the evidence clearly presents an issue. The Court of Civil Appeals held that the evidence was sufficient to sustain the verdict, and its decision is final.

W. D. Pierson, a witness for defendant in error, testified that about a week before the accident he heard one of the employees of plaintiff in error, who he thought was the engineer, request permission of Leo Jones, plaintiff in error's superintendent in charge of the work, to repair the engine, which he told Jones at the time was in bad shape, and to which Jones replied:

"No; we are going to make it go until we get through this job before we do anything with it, if we can."

Objection was interposed by counsel for plaintiff in error, to the effect that the testimony was, in the first place, hearsay, and, in the second place, that it was coming from an absolutely unknown source, the witness not undertaking to tell how it was, who it was, or what the man was doing, or even with any degree of certainty who made this remark; that plaintiff in error had no opportunity whatever for contradicting such testimony, could not cross-examine the witness who made the remark; that counsel were left in the dark as to who he was, and whether, the evidence was true or untrue.

The objections were overruled, and exception reserved.

The only proposition submitted under the assignment based upon the admission of this testimony is to the effect that the objectionable evidence was hearsay. The record shows that Leo Jones was the superintendent of plaintiff in error, in charge of the entire construction work in progress at the time of the injury. The language of defendant in error...