Decatur Cotton Seed Oil Co. v. Belew.

• Decision Date: 01 May 1915
• Docket Number: (No. 8159.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 178 S.W. 607
• Parties: DECATUR COTTON SEED OIL CO. v. BELEW.
• Court: Texas Court of Appeals

178 S.W. 607

DECATUR COTTON SEED OIL CO. v. BELEW.

(No. 8159.)^†

Court of Civil Appeals of Texas. Ft. Worth.

May 1, 1915.

Rehearing Denied June 5, 1915.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

Action by J. S. Belew against the Decatur Cotton Seed Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Thompson & Barwise and A. C. Wood, all of Ft. Worth, Ford & Ratliff, of Decatur, and Etheridge, McCormick & Bromberg, of Dallas, for appellant. McMurray & Gettys, R. E. Carswell, and J. V. Patterson, all of Decatur, for appellee.

CONNER, C. J.

In October, 1913, the appellant corporation was engaged in the manufacture of cotton seed products, and appellee was in the employ of the corporation as a "linterman." The duty of the linterman was to convey from the second floor of the main building to the cotton press in the "pressroom" the lint cotton separated from the cotton seed, and there cause it to be pressed into bales of convenient size. The pressroom was a two-story structure, adjoining the main building on the east. It was 20 feet north and south and 18 feet east and west. Its ground floor furnished the base for the cotton press, the mouth of the press being within a few feet of the horizontal plane of the second story of the main building. The east wall of the main building constituted the west wall of the pressroom. In this wall, however, there was an opening, through which the linterman conveyed the lint cotton from the second story of the main building to the mouth of the press into which the lint cotton was deposited. Over the roof of the pressroom, by the walls of which the structure was supported, there was situated a water tank with a capacity of about 5,500 gallons, which, for fire protection and cleansing purposes, it was the practice to fill weekly.

While the plaintiff was so employed, and while engaged in the performance of his duties in the pressroom, the walls of the pressroom suddenly collapsed, the water tank descended, carrying everything below with it, and appellee was very seriously injured in the wreck. To recover the damages resulting from such injuries appellee sued, and on the trial below recovered a judgment for $20,000, from which appellant has prosecuted an appeal.

Inasmuch as appellant urges a number of objections to the court's charge for want of sufficient support in the pleadings, we quote such parts of the pleading and charge as are deemed to be pertinent. Appellee, after describing the pressroom and the character of his duties, alleged:

"That on said 25th day of October, 1913, while plaintiff was at work in said pressroom, the walls and supports above said pressroom sustaining the said water tank gave way and fell, carrying said water tank with its accompanying debris on and into said pressroom, falling on this plaintiff, and greatly crushing, injuring, and crippling him, as hereinafter more particularly set out.

"That said building and the walls thereof were under the exclusive control of defendant, and plaintiff does not, and did not, know fully the condition and defects therein, but believes that the walls of said press building and supports for said tank were by defendant negligently constructed, maintained and permitted to weaken and decay and become dangerous, in the manner following: That the walls of said press building were built in two sections in close proximity to each other but in no manner tied together so that the one section of the wall could have the support of the other section; that said two sections were so constructed independently of each other from the ground to the top, so that one was the inner section and the other the outer section; that the inner section of said walls was constructed of stones of indiscriminate shapes and sizes not suitable or proper to be put into such wall, which said stones were promiscuously laid in mortar of inferior quality, such as would easily dissolve and fall out from between the rocks, and a great part of which had been dissolved and washed out, prior to said accident, by water that had been negligently permitted by defendant to constantly run over out of said tank and down through and over the said walls; that the said timbers on which the said tank rested at the top of said walls were so short that they did not extend into or over the outer section of said wall so as to have its support, but rested all of their weight and the weight of said tank on the inner section of said wall and were permitted to decay and become weak and insecure, and the said inner section of said wall, by reason of its said negligent construction and the permitting of said mortar to be dissolved and washed out, became too weak and defective to support said timbers, tank, and water resting thereon, and same crumbled and fell as hereinbefore stated.

"That defendant was negligent in constructing and maintaining said walls, timbers, and tank in such defective condition above shown, in permitting the walls of said press building and the supports of said tank to weaken and decay and thereby become dangerous, and in failing to properly inspect and repair the same, which said negligence on the part of defendant rendered the place of work of this plaintiff unsafe and dangerous and was the proximate cause of the injuries sustained by plaintiff."

The court thus submitted the main issues:

"Gentlemen of the jury: If, from a preponderance of the evidence, you believe that while plaintiff was in the employ of the defendant and at work in its pressroom, where the duties of his employment made it proper for him to be, the walls and superstructures of the building in which said room was located fell upon plaintiff, and that he thereby received the injuries complained of; and if you believe that the walls of said building consisted of an outer and inner wall, and that the timbers which supported the water tank and tower on said building rested upon the inner section only of said walls; and if you believe that the inner section of said wall was too weak to support the weight upon it and rendered it liable to fall, and that the defendant in the exercise of ordinary care and foresight should have known those facts, if they were facts; or if you believe from the evidence that said wall, by reason of the manner in which it was constructed and the stones and other material of which it was made, was too weak to bear the weight resting upon it, and that the defendant, in the exercise of ordinary care and prudence, ought to have known that fact, if it were a fact; or if you believe from the evidence that the mortar with which said wall was constructed had been dissolved and washed out by water from the tank overflowing and running down over said wall, and that said wall or walls had thereby become weakened and insufficient to support the water tank and weight resting upon said wall or walls, and that the defendant knew that fact, or by the use of ordinary care could have discovered the fact, if it were a fact; and if you believe the building fell and injured plaintiff, by reason of the defects in construction, or the defective condition of the wall or walls of said building, above referred to, if there were any such defects of construction or in the condition thereof, and if you believe plaintiff's said injuries, complained of, resulted directly and proximately from the failure of the defendant to use ordinary care in respect of any or all of the matters above referred to — you will find for the plaintiff, unless you find for the defendant under other instructions given you.

"1a. If the building fell and injured plaintiff on account of some defect or defects in the construction of same, and if its having become defective and insecure, as claimed by plaintiff, yet if such defective and insecure condition or such defects were not known to the defendant, or if the defendant, in the exercise of ordinary care, could not have discovered any such defects or such defective and insecure condition, if such existed, then and in that event the defendant would not be liable, and in case you so believe and find from the evidence, you will find for the defendant.

"2. The defendant was not an insurer of the safety of the plaintiff, while in its employ; but the duty devolved upon the defendant to use ordinary care to furnish the plaintiff a safe place in which to work, and use ordinary care to inspect the building in which it put plaintiff to work, and to discover and remedy defects which would render his employment dangerous, and for any failure to exercise such ordinary care, and to discover and remedy such defects, if any, which would render plaintiff's employment hazardous, and which could have been discovered by the use of ordinary care, and from which injury resulted, the defendant would be liable. The plaintiff had a right to assume that the building in which he was put to work was safe, and he was not required to inspect the same to ascertain if it were safe, before entering upon his work therein; but if said building fell and injured him by reason of defects therein, and if said defects were known to him, or were open and obvious (that is, patent to the view of a person of ordinary prudence, so that in the discharge of his duties he must have known of them), he cannot recover, and if you so believe from the evidence you will find for the defendant.

"3. `Ordinary care,' as used in this charge, means that degree of care which a person of ordinary care and prudence would use under like circumstances."

The complaint of the first paragraph of the court's charge is:

"That the court submitted three separate and distinct combinations of facts, each as an independent basis of liability, whereas, under the pleading of the appellee, it required a finding in his favor as to all of the facts in these three combinations, in order to entitle him to a verdict."

In the absence of complaint by demurrer, and after verdict and judgment,...