Denison Cotton Mill Co. v. McAmis

• Decision Date: 05 November 1919
• Docket Number: (No. 79-2857.)
• Citation: 215 S.W. 442
• Parties: DENISON COTTON MILL CO. v. McAMIS.
• Court: Texas Supreme Court

215 S.W. 442

DENISON COTTON MILL CO. v. McAMIS.

(No. 79-2857.)

Commission of Appeals of Texas, Section A.

November 5, 1919.

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

Action by J. O. McAmis against the Denison Cotton Mill Company. There was a judgment of the Court of Civil Appeals (176 S. W. 621), affirming a judgment for plaintiff, and the defendant brings error. Reversed and remanded.

John T. Suggs, of Denison, and Jones & Hassell, of Sherman, for plaintiff in error.

E. J. Smith, of Denison, and W. W. Nelms, of Dallas, for defendant in error.

STRONG, J.

The plaintiff, J. O. McAmis, recovered judgment in the district court against the Denison Cotton Mill Company, which was affirmed by the Court of Civil Appeals. 176 S. W. 621. We adopt the following statement of the case made by the Court of Civil Appeals:

"The action is by appellee for damages for personal injuries. As an employé of the mill company appellee, along with about eight others, was assisting in roofing a warehouse with a material known as asbestos roofing. The work was being done under the direction and immediate supervision of the mill company's superintendent and foreman. The building was 100 feet in length by 50 feet in width, the roof sloping 2 or 2½ feet to the eaves, and the eaves being between 16 and 20 feet from the concrete pavement below. The roofing material came in rolls of about 100 pounds weight each, and these, when unrolled, were 75 feet long, 3 feet wide, and one-eighth of an inch thick. When the rolls were smoothly laid on the roof, they were made secure and fast by being nailed down. The rolls were carried to the roof of the building and there unrolled; it being necessary for it to be unrolled for an hour's time in order to allow it to dry out before being nailed to the roof. At the time of his injury the appellee and a fellow workman were nailing down the first layer of the roofing, which overlapped the eaves of the building about an inch. He was sitting on the first layer, with his feet hanging down over the eaves, driving nails in the roofing, and had taken this position under the direct command of the foreman. He had been in this position and on the roof a very short time. Back of appellee, some 12 or 15 feet, two rolls were spread out on the roof drying. A heavy wind from the northwest was blowing, and had been for about two hours. While appellee was thus engaged one of the loose rolls was lifted and blown by the wind, forcibly striking appellee in the back and precipitating him to the ground. He struck on a cement roadway, causing grievous injuries. Nothing had been done to keep the roofing material that had been spread out on the roof from being blown by the wind. The method employed of unrolling the roofing on the roof, instead of on the ground, to dry it out, was, it was proven, under the express direction of the superintendent, and it was his direction that no weights be placed on the unrolled pieces while there drying out. It was testified that Munson, the manager, said, `You had better get something and weight it down,' and Hooks, superintendent in charge of the work, replied, `No; there is no use to weight it down. I did some roofing at Sherman with the same kind of paper, and did not have to weight it down.' Appellee was a day laborer and inexperienced in the work at which he was engaged. The case was submitted to the jury on special issues, and their answers are findings of fact that appellant was guilty of negligence, as alleged, in failing to weight down or fasten the roofing material laid out on the roof to dry, proximately causing injury to appellee, and that appellee was not guilty of contributory negligence, and did not, in point of fact, assume the risk of being injured from the roofing material under the circumstances."

The refusal of the trial court to peremptorily instruct the jury to return a verdict for defendant is made the basis of the first and second assignments of error. The Court of...