Dial v. Wilke

• Decision Date: 27 March 1939
• Docket Number: No. 5009.,5009.
• Citation: 127 S.W.2d 379
• Parties: DIAL v. WILKE.
• Court: Texas Court of Appeals

127 S.W.2d 379

DIAL v. WILKE.

No. 5009.

Court of Civil Appeals of Texas. Amarillo.

March 27, 1939.

Rehearing Denied April 24, 1939.

Appeal from District Court, Garza County; Louis B. Reed, Judge.

Action by William Dial against Adolph Wilke to recover damages for injuries. Judgment for defendant, and plaintiff appeals.

Reversed and cause remanded.

Vaughn E. Wilson, of Lubbock, and Madison Rayburn, of McMinnville, Tenn., for appellant.

Price & Moss, of Post, for appellee.

FOLLEY, Justice.

This is an appeal from the judgment upon a directed verdict in favor of the appellee, Adolph Wilke, in a suit wherein the appellant, William Dial, sought damages for injuries received by him when his hand was caught between two cog wheels of a commercial cane crushing machine or syrup mill alleged to have been owned and operated by the appellee.

The cane crusher was located near the town of Southland, Texas. It was a steel stationary machine motored from a tractor by means of a belt. The tractor stood some ten feet north of the mill. The cane was fed into the mill from the south end, which was the front of the mill. It passed between two large steel rollers or crushers about five feet high where the cane juice was extracted by a crushing process, after which the cane stalks, then called "pomace," passed on out the north or rear side of the machine where they fell upon the ground. The belt from the tractor was attached to a pulley wheel on the east side of the mill. At the rear of the machine and on the west side thereof were two unhoused cog wheels extending above the level of the mill which transmitted the power by traction from the pulley wheel to the steel cylinders through which the cane passed. Immediately east of the mill some fifteen or twenty feet was a sheet metal building containing vats in which the juice from the cane was cooked into syrup. West and southwest of the mill were stacks of cane which had not been crushed at the time of the injury. One of these stacks, which was about six feet high, was within three or four feet of the rear of the mill, barely leaving room for one to walk between this stack and the mill.

On August 26, 1937 the appellant was employed to work at this mill. He began work about 6:30 P. M. That night, some three hours after he began working, while he was attempting to clear away the pomace behind the mill, his hand was caught in the gears of the unhoused cog wheels which severed two fingers from his left hand.

The appellant alleged that he was wholly inexperienced in work around such a machine; that the gears of the cog wheels were usually and customarily housed and guarded by a metal hood; that such hood was the standard equipment which came with such machinery; that the machine in question was so equipped when first operated but that the appellee had removed such hood and negligently failed to replace the same prior to the injury of the appellant; that the cog wheels were wholly covered and obscured by the pomace collecting at the rear of the machine; that the unhoused condition of the gears was known to the appellee but was unknown to the appellant; that the appellee failed to warn the appellant of the defective and dangerous condition of the cog wheels, though such was his duty due to the inexperience of the appellant and the fact that such unhoused gears were completely hidden from view by the collected pomace; that due to the belt from the tractor being on the east side of the mill the appellant was compelled to work on the west side of the machine; that on account of the proximity of the stack of cane on the west side of the machine there was not sufficient room for appellant to use the long handled fork left there for his use in removing the pomace and he was therefore forced to use his hands in carrying out the directions of his employer; that the appellee had not furnished him with safe machinery and a safe place to work as was his duty to do; and that the appellee employed as many as three men in and around his plant and was subject to the terms of the Workmen's Compensation Insurance Law of the State of Texas, Vernon's Ann.Civ. St. art. 8306 et seq. Suffice it to say that the testimony of the appellant supported substantially the fact allegations just enumerated.

The appellee answered by general demurrer, general denial and specially denied that he employed as many as three men about such plant or that he was subject to the terms of the Workmen's Compensation Insurance Law of Texas. He affirmatively pleaded contributory negligence and assumed risk on the part of the appellant. He also alleged, but failed to prove, that the condition of the moving gears was openly exposed to the appellant. He further asserted that it was by reason of appellant's failure to use proper care and diligence that he was injured.

Although the testimony in the record is very indefinite as to the terms of employment between the appellee and the men who were working at the plant at the time of the injury, we think it was sufficient to present an issue of fact as to the number actually employed by the appellee at the mill. The evidence shows that other than the two sons of the appellee, who were present a portion of the time, Dave Draper, Jack Gendorf, Otto Claus, Jack Cantrell and the appellant were working at the mill on the day of the accident. Although the appellee denied that he hired the appellant or that he had anything to do with the operation of the mill, asserting that he owned the mill but had leased the same to his two sons, the appellant testified that it was the appellee who hired him in the afternoon preceding the injury. The appellant testified that one of the Wilke boys told him that afternoon that the appellee did the hiring around the plant. The appellant stated that upon seeing the appellee about employment about 4:00 o'clock that afternoon the appellee told him that he thought he lacked a man or two, that he could use the appellant that night, and for him to report back for work about 6:30 or 7:00 o'clock P. M. as some of the hands wanted to get off early. The appellee did acknowledge that he had hired many different men to work about the mill, admitted his presence about the mill on the day in question and stated that he sold some of the syrup on the afternoon in question. He further testified: "We never had regular hands. We hired just whoever came along." Under such circumstances we think the trial court was unauthorized to find as a matter of law that three or more men were not employed by the appellee at the time of the injury. Whether or not the appellee would have been deprived of his common law defenses would have depended upon the jury's finding on this issue. In the event it had been determined by the jury that three or more men were not so employed under such conditions as to deprive the appellee of his common law defenses, issues of fact would then have been presented as to contributory negligence and assumed risk on the part of the appellant which, under the facts of this case, could only have been determined by the jury. If three or more men were so employed, the appellee, not having subscribed to the Workmen's Compensation Insurance Law, would have lost his common law defenses of contributory negligence and assumed risk. In any event, however, before the appellant would have been entitled to recover, it would have been incumbent upon him to prove that his injury arose from some negligent act of the appellee or some agent or servant of such employer. Sec. 1 of art. 8306, R.C.S. of 1925. Unless, therefore, there was some evidence of negligent conduct on the part of the appellee herein to which the appellant might attribute his injury, the action of the trial court in directing a verdict for the appellee was without error. It will then be decisive of the principal issue now before us to determine if there was sufficient evidence to raise an issue of fact as to the negligence of the appellee.

Under the record presented it is our opinion that the evidence was sufficient to raise such an issue of fact. Although the appellant was shown to have done some work in carrying cane up to the mill and attending the cooking vats in the years 1933 and 1935, which was prior to the time of his injury, the testimony is uncontradicted that this was the first occasion upon which he had worked at the machine. He had worked only three hours at the mill before his hand was crushed. Having begun work about 6:30 P. M., it would naturally be evident that his injuries occurred some time after dark. Although the testimony is not very clear on the point we think that a fair deduction from the evidence as a whole would warrant the conclusion that the only light afforded the appellant was that which may have been furnished by the stars. He testified that for a while after he began work he fed the cane to the crushers at the front of the machine; that then Dave Draper took his place feeding the machine and he began...