Gamer Co. v. Gammage

• Decision Date: 01 November 1913
• Citation: 162 S.W. 980
• Parties: GAMER CO. v. GAMMAGE.
• Court: Texas Court of Appeals

162 S.W. 980

GAMER CO. v. GAMMAGE.

Court of Civil Appeals of Texas. Amarillo.

November 1, 1913.

On Motion for Rehearing, January 3, 1914.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Action by Henry C. Gammage against the Gamer Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

See, also, 147 S. W. 721.

Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. Hunter & Hunter and A. J. Clendenen, all of Ft. Worth, for appellee.

HENDRICKS, J.

This is an appeal from the district court of Tarrant county, from a verdict and judgment in appellee's favor for $4,000. At the time of appellee's injuries, he was the operator of a machine in appellant's plant, used for the purpose of cutting leather washers, the leather being placed by hand under the cutter fixed in the end of a perpendicular shaft, and the machine set in motion for the purpose of the work by a lever shifting a belt from a loose pulley to a tight pulley on the same shaft, which, with the action of the belt upon the tight pulley, started the machine in operation. The loose pulley turned upon a shaft, without operating the cutter; the tight pulley, with the belt thereon, only transmitting the power to the perpendicular rod operating the cutter. To stop the machine by means of a shifter, the operator would shift the belt back to the "idler" or loose pulley. There was a balance wheel, or a "flywheel" as termed by some of the witnesses, attached to the machine, which could be operated by the employé by hand, and when turned and in motion also moved the perpendicular rod and cutter; and the operation of the flywheel and the movement of the belt upon the tight pulley were the only means by which the machine and cutter could be put in motion, unless started on account of some defect which appellee alleges existed on this occasion, as follows: "That said machinery by reason of the negligence of the defendant, its managers, superintendents, and servants, was out of repair and defective, and was dangerous to work with, the lever being out of repair and not properly secured and fastened so as to hold the belt on the idler, and the belt, being worn and crooked and not true, would not stay on the idler, but by wobbling moved the lever and got onto the fixed pulley and started the machinery, and the idler pulley was worn and wobbled and was not properly set on the shafting, and would wobble and otherwise carry the belt onto the fixed pulley, or by friction and negligent failure to oil would become heated and tighten on the shafting, thereby starting the machinery, and there were other defects in said machinery which caused it to start up and run and to make it dangerous, which were all unknown to the plaintiff and were not obvious." This cutter, which perforated the leather, worked in a "die," and was fastened in place by a horizontal pin, inserted into the perpendicular rod, and upon this particular occasion Gammage claims that he had the cutter in his left hand, and was pressing upon the cutter into this perpendicular shaft with three of the main fingers of his left hand, with his thumb outside, pressing against the machine, and was in the act of inserting this connecting pin in order to fasten the cutter, when the machine started in some manner unknown to him, and with the downward stroke of the perpendicular rod and cutter upon the die below, amputated the three fingers holding the cutter; that his attention and vision were directed to the immediate work in hand of fastening the cutter to the rod, and as soon as the rod began to move his sense of sight and feeling informed him of that fact, and that he knew, of course, that it would cut his fingers off if it struck the die. He testified that when he began his employment he was instructed by an employé, to whom he was referred by the superintendent of the plant, how to adjust the cutter to the rod, and this instruction was the same method used by him when injured, and that he was not warned of any defect in the machinery, or instructed any differently as to any other method of adjusting the cutter, which is not denied in this record. Plaintiff had been in the service of the appellant company nine days when injured, however, not working upon this particular machine the whole period, but just the length of time he operated it is not definitely stated; and he stated that during that period no other person, so far as he knew, ever operated the machine, and that he had never heard or knew of the machine starting without the belt having been shifted to the tight pulley, or the flywheel having been moved, and further said, "Before the time I was injured, it had always responded and worked all right—responded to the shifter." Upon this particular occasion he says he had not worked upon this machine for about two days, and the same was at rest, and that he saw when he went to the machine that the belt was upon the idler pulley, and when he was inserting the pin for the purpose of fastening the cutter onto the rod, he was facing in the direction of the balance wheel, and did not have occasion to move the connecting rod so as to get into position for insertion; that "he found it exactly in the position he wanted it"; that when the connecting rod was in the right position to insert the cutter and key, it leaves a space between four and five inches from the die below to the cutter above, and that he would have that much space less his fingers between the two objects.

In conformity with his pleadings, the plaintiff in this case introduced one W. R. Kirby, an expert witness, who qualified himself as an erecting engineer, and machinist, and familiar with this character of machinery, and who testified that if the machinery was in proper condition and correctly constructed, you could not start it except by using the shifter or flywheel, and if it started in any other manner, it was defective. He testified to three defects, which "could exist that could start the machine if a man did not throw the shifter or turn the balance wheel": First, that the shifter might be out of plumb (out of balance) and lean against the belt, and the loose belt, touching the shifter, with the weight of the same traveling, and the pressure against it, towards the tight pulley, would cause the belt to crawl to the tight pulley, and when the contact was sufficient with the belt on the tight pulley, the machine would start; second, he says the shaft upon which the pulleys operate has a collar at each end outside the bearings, which work endways, and if this collar worked loose it would permit the tight pulley to move along the shaft and get under the belt and start the machine; and, third, from lack of oil the loose pulley and shaft, on account of the friction, might become heated and stick—become a tight pulley so to speak—and start the machine. He testified he had known all three defects to occur in the operation of machinery, and as to the second defect, he said the remedy to apply would be to slide the shaft back and tighten the collar, "so that the tight pulley cannot get under the belt," and further said, "You could not get the machine to run right until you fixed it; you have to fix the machine." As to remedying the third defect, he said: "When from lack of oil a shaft and a loose pulley would get hot and swell, so the loose pulley would grip the shaft instead of turning on it, * * * you would have to take the pulley off the place where it is heated, dress the shaft, and oil the pulley * * * until the pulley will turn free again."

The evidence in this case is totally lacking of any proof of actual knowledge of any defect in this machine; the affirmative proof is to the contrary, and the liability of the master must be based upon a proposition in law that, if defective, he could have discovered the defect by the exercise of ordinary care—it must come within the rule where, under the circumstances shown, the accident presumably should not have happened if due care with reference to inspection had been exercised. Labatt on Master & Servant expressed the rule in ordinary cases that "the positive branch of the rule which expresses the significance of the fact that the abnormal condition had existed previously to the accident may be stated as follows: Where the instrumentality which caused the injury was in an unsafe condition so long before the accident happened that the master would have discovered such unsafety if he had been in the exercise of reasonable care, he stands, as regards liability, in the same predicament as if he had actually known of the defects." Volume 1, § 132, p. 280.

There should be a limitation at some point, of course, bottomed upon the facts of each particular case, where a court can say the evidence is not sufficient. In the case of Gulf, Colorado & Santa Fé Ry. Co. v. Pettis, 69 Tex. 689, s. c., 7 S. W. 93, the Supreme Court, although holding the master liable upon other grounds, held that where the passage of a preceding train tore up a reasonably safe and sound track, and rendered it defective an hour before another train was wrecked, the master could not be held liable, involving the corollary that a reasonable system of inspection, if made with that degree of care obligatory in such matters, could not have discovered such a defect, and the injury and accident avoided. We presume, of course, that appellee, in reality bottoms his case upon the doctrine of res ipsa loquitur, the thing speaks for itself, and which from the citation of authorities in the Hayden Case, 29 Tex. Civ. App. 280, 68 S. W. 530, we deduce that the Court of Civil Appeals pertinently applied the same rule, although the facts there were not as developed and as significant as to the exculpation of the master as here. "Where the particular thing causing the injury has been shown to be under the management of the defendant or its servants, and the accident is such as in the ordinary course of things...