Galveston Oil Co. v. Morton

• Court: Supreme Court of Texas
• Writing for the Court: Maltbie
• Citation: 7 S.W. 756
• Parties: GALVESTON OIL CO. v. MORTON.
• Decision Date: 27 March 1888

7 S.W. 756 GALVESTON OIL CO.
v.
MORTON. Supreme Court of Texas. March 27, 1888.

Commissioners' decision. Appeal from district court, Galveston county; WILLIAM H. STEWART, Judge.

Action to recover damages for injury sustained by the plaintiff in defendant's oil-mill. Judgment was rendered for the plaintiff, and the defendant appeals. Among other things the court charged as follows: "If you believe from the evidence that the defendant, either expressly or by implication, invited the plaintiff to come into its mill and premises for a lawful purpose, and the plaintiff while so there was injured by the negligence of defendant, and that the plaintiff exercised such care and prudence as prudent persons ordinarily exercise to avoid danger from the machinery and appliances, then the defendant would be liable to the plaintiff for damages from his injuries, if the defendant knew, and the plaintiff did not know, of the dangers."

Page 757

F. Charles Hume, for appellant. Forster Rose and E. D. Cavin, for appellee.

MALTBIE, J.

The appellee, Digby B. Morton, wishing to see Desmond, an employe of the Galveston Oil Company, went to the office of the company and inquired for him. Some one in the office, whether an employe of appellant or not does not appear, informed Morton that Desmond was in the oil-room; and, upon inquiry how he could get there, was informed that he could go through the office or through the street entrance. Arriving at the oil-room, appellee inquired again for Desmond, and was told that he had passed through five or ten minutes before; went in the direction that he was told that Desmond had gone; and, in passing through the second room from the oil-room, received the injuries for which he sues. Appellee testified that the room in which the accident occurred contained cotton seed in sacks piled upon each other as high as a man's head; that there was only one passage-way between the rows of sacks, four or five feet wide. A man was in the room shoveling cotton seed, his back to appellee. The man said nothing. Appellee followed the passage between the sacks, in pursuit of Desmond; and stepping upon a pile of cotton seed in the passage, a foot and a half or two feet high, his foot sank down through the seed into a screw or endless worm under the floor, and was thus injured. The worm was hidden or concealed from view by the cotton seed. The cotton seed may have been in motion, but the motion could not be discovered or was not seen by appellee. He did not know that the worm was under the seed. His business was with Desmond personally. He did not request a guide, nor was any furnished, and no warning was given him of the danger. It appears that the iron screw or worm takes the seed from one part of the building to another; thence to the elevator, from which it is conveyed to the upper story. The feeder such as was used in this mill is in universal use to convey seed. There was and is nothing unusual in its construction or operation. It runs under the floor, which is so made that two or three planks can be taken up, exposing the feeder so that seed can be dumped...