Galveston Oil Co. v. Malin

• Decision Date: 27 February 1884
• Docket Number: Case No. 1774.
• Citation: 60 Tex. 645
• Parties: THE GALVESTON OIL CO. v. JOHN MALIN.
• Court: Texas Supreme Court

60 Tex. 645

THE GALVESTON OIL CO.

v.JOHN MALIN.

Case No. 1774.

Supreme Court of Texas.

Feb. 27, 1884.

APPEAL from Galveston. Tried below before the Hon. W. H. Stewart.

Suit by John Malin against the Galveston Oil Company to recover damages, alleged to have resulted to him by reason of injuries received in the performance of his duties as its employee in putting a leather belt on a pulley used in operating a part of the machinery of its mill. The injuries were received about February 26, 1883, and were charged to have been due to defective machinery and the negligence of the company. Defendant answered by general demurrer, general denial, and special pleas, charging Malin with recklessness, negligence and disobedience of orders, and that the injuries complained of were due alone to his own fault, and not to defective machinery or the company's negligence. Verdict for Malin for $4,000 and judgment thereon.

Appellee testified as follows:

“The day I was hurt I was up stairs at my carpenter work, when I was sent for to put on the belt; and I put my work down and went down stairs to put on the belt; and while I was engaged in putting on the belt an open hook caught my sleeve and jerked me over the pulley; tore all the flesh off of my forefinger and thumb, etc. Don't know how or when the hooks parted. It was not my duty to inspect the belt. It was the duty of the superintendent and engineer. I was attempting to put the belt on in the same manner I had always done, when I was injured. The beam to which the shaft and pulley are attached is about twelve feet high. There was no platform or anything to stand on while adjusting the belt to pulley. I had to get a ladder, place it against the beam, climb up, stand with one foot on ladder and my knee on the beam, hold on to an upright pillar with one hand, stoop over and catch belt with the other, pull it up on pulley with my hand and press it on with my arm. When the belt is on the edge of the pulley it begins to move, and it takes a number of revolutions to complete the adjustment. The machinery was going at its full velocity when I was hurt; they did not slow up for me to put on the belt--they never slowed up for that purpose. The belt would be slipped off, some days as many as six or seven times a day. The belt was leather, about a foot wide and forty feet long, counting both ways--that is, twenty feet from point to point. Belt was fastened with metal hooks; there were as many as two fastenings, but can't say how many more. I don't know how the hooks parted, or when they parted. Came down immediately upon being notified. No one told me to put on the belt before the machinery was in motion. The superintendent did not warn me not to seize the belt near the hooks when putting it on pulley. No instructions were given me by defendant or any of its officers, on the occasion of my injury, to put the belt on before machinery was in full motion. It was the custom to put the belt on when machinery was in full motion when directed to do so. Anybody took belt off. Don't know who took it off night before accident. I did not.”

Mannetosky and another testified: “Appellee acted in his usual way in putting on the belt; but for the open hook catching him the injury would not have occurred. The belt parted (Counsel--not the hooks), and Malin fell to the floor senseless. He acted in his usual way in putting on the belt; they never slowed up the machinery to put on the belt. It was going with full speed.”

Superintendent Hulme testified: “It was my duty to superintend the mill and its appliances. The belt was put on at no particular time. It was the plaintiff's contract and duty to put it on whenever directed. He performed the service for sixteen months continuously before the injury occurred. In that period no accident happened. He was a skilled hand and did his duty well. It was his duty to put on the belt whether the machinery was going fast or slow; and he often performed that service when it was going at its best velocity.”

Hulme, cross-examined by appellee: “All the belts in the mill are connected by metal hooks, except belt on main wheel. There are no hooks made for that character of belt. It is fastened with twang leather. Belts of all sizes are fastened with twang leather, and some prefer them to metal hooks; but I do not. If the belt had been fastened with twang leather, of course there would have been no parted hooks to have caught him. Loose pulleys are used when belts are to be shifted often, and are safe. There is no danger in handling a loose belt. By pulling or pushing the lever of a loose pulley the belt is shifted on or off the fixed pulley. Loose pulleys are only used when the belt has to be shifted many times a day--every few minutes. They are used about very delicate machinery. The accident could not have happened if the pulley had had a loose pulley. The belt was put on by plaintiff some days half a dozen times. The machinery is never slowed up for that purpose. Loose pulleys are not used in mills like defendant's. It was my duty to superintend mill and appliances.”

Another witness for defendant testified that plaintiff put on the belt whenever requested, and that they never slowed up for him to put it on.

There was a conflict of testimony as to whether plaintiff was ordered to put on the belt before the machinery was in full motion.

The reference in the opinion to those portions of the main charge which obviated the necessity of giving the charge refused renders it unnecessary to give the main charge in full.

Hume & Shepard, for appellant, cited on the refusal to give charge asked: G., H. & S. A. R. Co. v. Delahunty, 53 Tex., 211-12; Tex. M. R. Co. v. Whitmore, 58 Tex., 289;Wabash R. Co. v. McDaniels, 107 U. S., 458, 463; D. C. Rules, 60 a; Wood's Master and Serv., secs. 418, 419, last sentence on p. 800, 332; Shearman & Redf. on Negligence, sec. 90; Hoffman v. Chicago R. Co. (Mo.), 17 Cent. L. Jour., No. 5, August 2, 1883, 97, 98; Wright v. N. Y. C. R. Co., 25 N. Y., 566; R. R. Co. v. Troesch, 68 Ill., 547-8, 551-3; Kunz v. Stuart, 1 Daly (N. Y.), 436; Wonder v. Balt. R. Co., 32 Md., 416-20;Beaulieu v. Portland Co., 48 Me., 295-6;McMillan v. Saratoga R. Co., 20 Barb., 449.

On their proposition that appellee could not recover unless it was shown that appellant was negligent in the selection of machinery and appliances, whereby the injury occurred, they cited: G., H. & S. A. R. Co. v. Lempe, 1 Tex. Law Review, 117; Davis v. D. & M. R. Co., per Cooley, J., approving Mad River R. Co. v. Barber, 5 Ohio (N. S.), 564; 20 Mich., 125-6; Loonam v. Brockway, point stated in syllabus; 3 Rob. (N. Y.), 74;O'Connell v. Baltimore & Ohio R. R. Co., 20 Md., 220-2.

Frank M. Spencer and John T. Harcourt, for appellee.

WEST, ASSOCIATE JUSTICE.

The merits of this case have been very...