Ft. Worth Stockyards Co. v. Whittenburg

• Decision Date: 02 January 1904
• Citation: 78 S.W. 363
• Parties: FT. WORTH STOCKYARDS CO. v. WHITTENBURG.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 363

FT. WORTH STOCKYARDS CO. v. WHITTENBURG.^*

Court of Civil Appeals of Texas.

January 2, 1904.

Appeal from District Court, Tarrant County; M. E. Smith, Judge.

Action by E. M. Whittenburg against the Ft. Worth Stockyards Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

N. H. Lassiter, C. M. Templeton, and Robert Harrison, for appellant. Wynne, McCart, Bowlin & McCart, for appellee.

CONNER, C. J.

Appellee recovered a judgment against the appellant company for the sum of $1,000 as damages for personal injuries caused by the fall of an overhanging bank of earth at a sand pit to which appellee had gone for the purpose of getting a load of sand. Among other things, appellant pleaded assumed risk on appellee's part, in that the danger was "as open and apparent to the appellee as to the appellant, and that the appellee, in undertaking to work in and about the sand bank, assumed the risk of its caving or falling in on him."

Error is first assigned to the action of the court in overruling appellant's motion for continuance in order to procure the testimony of H. P. Hayes, W. J. Campbell, and H. R. Upp, residents of Tarrant county. It appears that the case was first set for trial on the 10th of March, 1903. On the 7th day of that month appellant procured subpœnas for said witnesses, which were served on the 9th of March. The case was not reached for trial until on or about the 13th of March, upon which day the witnesses named were not in attendance. The case was accordingly postponed on account of the absence of these witnesses, and reset for the 1st day of April. Appellant on March 31st caused other subpœnas to be served upon said witnesses, but they were not present on April 1st, and appellant announced, "Not ready for trial," because of their absence, and the case was again postponed until 2 p. m. of that day for the purpose of procuring the attendance of the witnesses. After such postponement, appellant's attorneys telephoned to the general manager of the appellant company, and requested him to endeavor to see said witnesses, and have them appear at 2 o'clock p. m. of that day, which he promised to do if possible. At 2 o'clock p. m., however, the witnesses were not present, and formal application was accordingly made for a continuance; it being presented as an application for a first continuance, and as such was formally sufficient. We think a mere statement of the facts a sufficient demonstration of a want of diligence on appellant's part to secure the attendance of the witnesses on account of whose absence the application was made, and are of opinion that the court properly overruled the application. See Rev. St. 1895, art. 2267; Ry. Co. v. Hall, 83 Tex. 675, 19 S. W. 121; Doll v. Mundine, 7 Tex. Civ. App. 104, 26 S. W. 87.

Appellant's further contentions are to the effect that the evidence fails to show any negligence on its part authorizing a verdict in appellee's favor, and that it affirmatively appears that the accident to appellee resulted from a risk assumed by him. But three witnesses testified, all of whom were offered by appellee. The testimony is without conflict, and is substantially as follows: Appellee testified that he was 60 years of age, and had been a farmer most of his life; that in July, 1902, he was working for the appellant company under one of its foremen, a Mr. Godwin; that most of the time he hauled lumber and posts, and different things, using a two-horse wagon and team of his own; that, while so employed, Godwin directed appellee "to go down to the ravine and get a load of fine sand to set brick with." Further quoting appellee's testimony, he testified that: "I went down the branch as I was directed to; somewhere near the place, as I thought; something near the bank; jumped out of my wagon to look for sand. When I got out of my wagon, I got crippled. When I got out of my wagon I didn't do anything—didn't get a chance to do anything. The bank caved off on me. It was a bank of earth and dirt. I suppose it was some 7 or 8 feet high. I never measured it. I drove my wagon up within 5 or 6 feet of the bank. * * * I never had hauled any sand out of this pit before this. * * * I did not notice anything unusual about this pit when I went down into it to get the sand. I viewed along the bank and in the branch to hunt for sand—the kind of sand that the gentleman wanted—and there was nothing in the bank that I wanted that I could see. * * * I did not know anything about this bank being in a dangerous condition or likely to fall. Didn't know anything about that. I did not observe anything unusual about the appearance of it to indicate danger. * * * There wasn't any pit— nothing but a piece of level ground near the bank—and I stepped off the wagon on the ground to examine for sand. I was near the bank, and the bank caved in, and I done nothing but just did get out in time to get hurt. I got out on the side next to the bank. I don't know how much of the bank caved in on me." Cross-examined, he further testified: "I suppose this gravel pit was 300 or 400 yards from the place where I was to haul the sand. Mr. Godwin just came to me and says that `I want you to put on your dump boards and go down there, right down that branch there, wherever you can—near that bank along there, wherever you can find some sand suitable to set brick with—and bring me a load right at once.' He did not tell me to go to any particular place; just told me to go down that way and get some sand, wherever I thought I could get it; directed in the branch. I went down this branch according to his directions. At the time there were men just a short distance below me at work. I don't know what they were doing. I expect getting out gravel—I guess they was. I didn't pay much attention to them. None of my business to look after them. They were, I suppose, 75 or 80 yards from me. There was nobody at work right at the place where I got hurt. I couldn't tell whether there had been anybody at work there for several days or not. If anybody had been at work there that morning, I don't know of it. There was so many wagon tracks in there, as it was a large gravel bed, that I couldn't tell whether any one had been working there that morning before I was hurt or not. I had hauled some gravel before this time while I was working for Armour & Co., but not from this place, but never hauled any sand. * * * I don't know who this gravel bed belonged to. If I remember right, I had hauled the gravel for Armour & Co. about two weeks prior to the time I was hurt. * * * No one cautioned me about this bank, or said anything to me about it at all. I had not heard anything about the bank being dangerous before I went to the bank. * * * I could see this bank. Had every opportunity to look at it, and did not see anything. I could glance along the bank and see, and couldn't see anything. * * * Everything was open, and nothing concealed about it."

W. J. Lattimore testified: "I had been about this bank that caved in on him [appellee]. I got about...