Gordon Jones Const. Co. v. Lopez

• Decision Date: 11 November 1914
• Docket Number: (No. 5321.)
• Citation: 172 S.W. 987
• Parties: GORDON JONES CONST. CO. v. LOPEZ.
• Court: Texas Court of Appeals

172 S.W. 987

GORDON JONES CONST. CO. v. LOPEZ.

(No. 5321.)

Court of Civil Appeals of Texas. San Antonio.

November 11, 1914.

On Motion for Rehearing, February 3, 1915.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Ladislado Lopez against the Gordon Jones Construction Company. Judgment for plaintiff, defendant appeals. Reversed and remanded.

M. J. Arnold, R. S. Cozby, and W. S. Peyton, all of San Antonio, for appellant. J. D. Childs and James W. Brown, both of San Antonio, for appellee.

MOURSUND, J.

Ladislado Lopez sued the Gordon Jones Construction Company for damages for injuries sustained by him because of falling from a wall which he was assisting in tearing down while in the employ of said company. He alleged that John Crawford was foreman or vice principal of defendant company, acting as the personal representative thereof, and was overseeing, directing, and controlling the work at which plaintiff was engaged; that Crawford negligently sent plaintiff to work on top of one of the walls, which was then and there being torn down, at a place which was unusual, improper, insecure, and unsafe, and plaintiff was inexperienced in that class of work and did not understand and appreciate the danger attending the same and the means of avoiding same, and could not have discovered the same by the exercise of ordinary care, which ignorance, inexperience, and want of knowledge on plaintiff's part was known by defendant, or would have been known by the exercise of ordinary care, and while plaintiff was engaged in said work, and using due care in stepping from one place to another upon said wall, he placed his foot upon what seemed to him a part of the top of the wall, which appeared safe to him, for the purpose of walking upon it, but which place was insecure and highly dangerous for any person to walk or work upon because, instead of being a solid wall, it was in fact only a cornice or plastering of mortar insecurely fastened to the wall, and said cornice or plastering gave way from plaintiff's weight when he stepped upon the same and precipitated him to the ground; that defendant gave plaintiff no warning or notice of the defect in the wall, occasioned by such cornice, nor of the danger of walking thereon nor instructions how to avoid the same, and said cornice was in such condition and position and so attached to the wall that plaintiff did not and could not, by the exercise of ordinary care, have discovered the said condition of the same and the danger of stepping upon same, which defendant knew, or by the exercise of ordinary care would have known. By way of a separate count, plaintiff alleged negligence on the part of defendant in failing to furnish him a safe place to work and a safe plan and safe instrumentalities for doing the work; that the work should have been done by means of a temporary scaffold, upon which plaintiff could have stood, or should have used a derrick with a rope, block, and tackle and grabhooks to obviate the necessity of plaintiff's standing upon the wall. In this connection plaintiff's inexperience and lack of knowledge of the dangers incident to the work and of the necessity of using a scaffold or derrick were fully alleged.

Defendant, after his denials of plaintiff's allegations, alleged: That, if the wall was in a dangerous condition, plaintiff created such condition during the progress of his work of tearing it down; that in doing such work the stones would be loosened, and as the material was loosened, and the joists pulled out, new dangers would constantly be presented on account of parts of the wall becoming loose or the footing insecure, and that plaintiff knew this, or in the ordinary discharge of his duties must necessarily have known it, and by the exercise of ordinary care in the discharge of his duties would have known it, and the risks thereof, and therefore he assumed the risks of such dangers. Defendant further pleaded that plaintiff assumed the risk of the work being done in the manner in which it was done, of stepping too near the edge of the wall, of portions of the wall becoming loose, especially near the edges; that he assumed the risk, knew of the defect that caused his fall, and necessarily would have known thereof in the discharge of his duties, together with the attending risks. Defendant further pleaded that plaintiff was guilty of contributory negligence in failing to observe repeated warnings to keep the top of the wall clean and clear of rubbish, in moving about upon the wall in a reckless way in despite of the warnings to be more careful where he was stepping, in failing to keep a proper lookout, and in failing to make a proper inspection to see that the footing was safe before undertaking to walk, in stepping too near or beyond the edge of the wall instead of staying in the middle thereof, and in failing to inspect the wall by looking at it, feeling of it, and striking it with his tools before putting his foot down. Defendant also alleged the defense of latent defect in the wall.

The trial resulted in a verdict and judgment in favor of plaintiff for $5,000.

Assignments 1 and 2 complain because of the court's refusal to give a peremptory instruction in favor of appellant. It is contended that the evidence is insufficient to show negligence on the part of appellant, and further that appellee assumed the risk, as a matter of law. After a careful reading of the statement of facts, we conclude that the assignments should be overruled. Negligence is predicated upon the failure to warn appellee of the danger of stepping upon a plaster of paris cornice or molding. Much of the testimony is not as clear to us as it was to the jury, because upon the trial a "model" of the wall and cornice was exhibited to the jury, and many questions asked with reference thereto, the answers to which furnish us with no light upon the issues in the case. We are unable to say, as a matter of law, that the danger of stepping upon such cornice was as open and apparent to plaintiff as to the defendant's vice principal, or so open and apparent that a man of ordinary prudence would not have stepped upon the same.

Assignments 3 and 4 complain of paragraph 2 of the court's charge, the contention relating to the sufficiency of the evidence, and, as said assignments raise the same question as assignment No. 1, they are overruled.

The fifth assignment is without merit, and is overruled.

By assignments 6 and 7 complaint is made of paragraph 3 of the charge, wherein the issue is submitted whether appellant was negligent in the matter of furnishing a plan or method of doing the work. No objection is made in the sixth assignment to the form of the charge, but the objection is that there is no evidence to justify the submission of the theory of negligence with respect to the method of doing the work. Under our decisions, the real issue is whether the employer has used ordinary care to provide a reasonably safe method or plan of doing the work. Evidence of the use of the same method by other persons engaged in the same business is admissible upon the issue of ordinary care, but such evidence furnishes no conclusive guide in determining the issue. In this case the charge emphasized the question whether the usual method was pursued, when there was no evidence that any person ever used any other method, and, if that was the test, it could be said without further discussion that the issue should not have been submitted. We have carefully considered the evidence and find that it is overwhelmingly to the effect that the plan used by appellant was the one commonly used by persons engaged in the business; but, in view of the witness Blum's testimony, we cannot say, as a matter of law, that appellant used ordinary care to furnish a reasonably safe method of doing the work. The seventh assignment is a contention that the issue should not have been submitted, because, as a matter of law, appellee assumed the risk incident to the plan or manner in which the work was being done. Assumed risk is based upon the theory of actual or constructive knowledge. The evidence does not disclose knowledge on the part of appellee of the dangers incident to stepping upon the cornice, nor that such danger was so open or obvious that, with the experience he had, he can be charged with constructive notice. The sixth and seventh assignments are overruled.

In assignments 8 and 9 complaint is made of the seventh paragraph of the court's charge, which reads as follows:

"In determining the question of contributory negligence on plaintiff's part, under this charge or under the special charges given you, you may consider all the facts and circumstances in evidence before you, including his experience, and determine from those circumstances whether or not the plaintiff acted as a person of ordinary prudence would have acted under the same or similar circumstances."

Appellee cites the case of Hillsboro Oil Co. v. White, 54 S. W. 432, in support of the correctness of the charge of the court. A writ of error was denied in that case. We consider the case as sufficient authority to require the overruling of the assignment, although we do not approve the charge. The special mention of certain matters may induce the jury to consider that the court regards such matters as entitled to great weight. The assignments are overruled.

Assignments 10 and 11 relate to the issue of latent defect in the wall; it being contended that a charge should have been given upon said issue. At first glance it would seem that there is no merit in this contention, in view of the admission of appellant's counsel in their brief as follows:

"The undisputed testimony shows that the wall was strong and solid after the accident and the wall itself did not fall. It is not necessary for us to again quote testimony to show that the wall did not fall and no part of it fell with Lopez."

However, a reading of appellee's own testimony...