Galveston Oil Co. v. Thompson

• Citation: 13 S.W. 60
• Parties: GALVESTON OIL CO. <I>v.</I> THOMPSON.
• Decision Date: 14 February 1890
• Court: Supreme Court of Texas

13 S.W. 60

GALVESTON OIL CO.v.

THOMPSON.

Supreme Court of Texas.

February 14, 1890.

Appeal from district court, Galveston county.

McLemore & Campbell, for appellant. Wheeler & Rhodes, for appellee.

STAYTON, C. J.

Appellee's version of the facts of this case is that he was employed to work as a sweeper on the lower floor of the oil-mill, and while thus engaged he was directed by the superintendent to go aloft, and remove a scantling on the joists, or perhaps rafters, above. That, in obedience to the order, he ascended and walked along a narrow plank, to the place where he could reach the scantling, still above him, when, in an effort to remove it, his clothing was caught on a revolving shaft, around which he was drawn until his clothing, by which he was held, gave way, when he was thrown to the floor below, and in the accident greatly injured. He states that the immediate cause of his clothing being caught on the shaft was protruding bolts, with which the shafting was coupled, these being, as he and others state, unnecessarily and improperly so left, making it perilous for persons to work about or around the shaft. He further shows that the place to which he was directed to go was one not visited by employes, except the man whose business it was to oil the machinery. The superintendent denied that he directed appellee to remove the scantling; that there was any reason why it should be removed; or that he had any knowledge whatever of any intent on part of appellee to attempt to remove it; and there was some evidence tending to show that he had gone to his home at the time appellant claimed to have been directed to remove the scantling, but this evidence was of uncertain character. Before the accident occurred appellee had but one hand, and, at the time he was caught in the shafting, was standing with the side from which the hand was gone next to the shafting, which caught the loose sleeve. That the place to which appellee was directed to go was one of danger, and this greatly increased by the protruding bolts, the evidence tends strongly to show. Appellant offered evidence tending to show that the bolts used in coupling shafting did not protrude as claimed by appellee, but that, on the contrary, the coupling was in all respects carefully made, in the manner usual for such couplings.

The court, in effect, charged the jury that appellee would be entitled to recover, if the superintendent ordered him to perform a service not "within the purview of the plaintiff's employment," which was dangerous, if in this the superintendent did not use due care, provided appellee was injured while attempting, in the exercise of due care, to obey the command. It is urged that the court erred in the charge given, in that "thereby the jury were prevented from considering as a matter of defense the reckless disregard of plaintiff for his own security in undertaking to obey the order of defendant's agent." Such was not the effect of the charge. On...