H. S. Hopkins Bridge Co. v. Burnett

• Citation: 19 S.W. 886
• Parties: H. S. HOPKINS BRIDGE CO. v. BURNETT.
• Decision Date: 24 May 1892
• Court: Supreme Court of Texas

19 S.W. 886

H. S. HOPKINS BRIDGE CO. v. BURNETT.

Supreme Court of Texas.

May 24, 1892.

Commissioners' decision. Section A. Appeal from district court, Hood county; C. K. BELL, Judge.

Action for personal injuries by S. E. Burnett against the H. S. Hopkins Bridge Company. Judgment for plaintiff, and defendant appeals. Reversed.

Pendleton, Chapman & Powell, for appellant. Estes & Wear, for appellee.

HOBBY, P. J.

This is a suit for personal injuries, brought by the appellee, plaintiff below, against appellant, defendant. There was a trial by a jury resulting in a verdict for plaintiff for $3,500, on which judgment was entered. This appeal is therefrom by the defendant. The ground on which the plaintiff sought to recover, as alleged in the petition, was: That he was in the employment of the defendant, a company engaged in constructing an iron bridge over and across the Brazos river, in Hood county, for the Ft. Worth & Rio Grande Railway Company. That he was employed by defendant in July, 1887, to labor in the construction of said bridge, and that he did work and labor at said construction of said bridge in July, 1887, under direction of defendant's agent. That it became necessary for him, while so working, to drive an iron pin or bolt, and rivet the same, in making some fastenings on said bridge. That defendant negligently, etc., furnished him with a "frail and defective hammer" with which to drive said pin or bolt, and rivet the same, which defendant knew to be frail and defective, and yet ordered plaintiff to drive and rivet said pin with said hammer." It was alleged that plaintiff noticed the apparent defect in said hammer, and called defendant's attention thereto, but defendant negligently, etc., assured plaintiff that he knew "it to be safe, sound, and all right," and commanded him to use the same. Appellee testified that "nothing was said about the kind of work he was to do. He worked generally for the defendant," at one thing and then another, until a short time before he was injured, when Mr. Higley, the superintendent of defendant, told him to go to riveting. He worked at this a few days. He had had but little experience at this work. One of the "riveters" was sick, and he was put at the work. "It takes three men to rivet. One called a `holder-up,' and two others who do the `riveting' proper. The cord we were at work on consisted of four or five flat pieces of iron, placed on top of each other, with holes in them intended to correspond. But when they do not correspond exactly, we take a steel drift pin and drive it from the top into these holes, until the holes in all of the pieces are even with each other. This pin is driven with what is called a `flogging maul,' weighing eight or ten pounds. After it is driven in, it is then driven back from beneath the same maul, then a red-hot bolt is placed in the hole; and while the `holder-up' catches it from the bottom and holds it, the `riveters' rivet it at the top, while it is yet hot. This work is done with a small hammer weighing two pounds, called a `riveting hammer.' A short time before I was hurt, the flogging maul became unfit for use," etc. "I called Mr. Higley's attention to this, and he told me to take the big hammer and use it. I told him it was too large, and then he told me to use the riveting hammer. I told him it was too small. He said the hammer was all right; to `go ahead.' Relying on these statements, and supposing that he knew," so testified the plaintiff, he continued the work, and in attempting to knock the pin out from beneath with the riveting hammer, a part of the face of the hammer split or "chipped" off, and knocked plaintiff's eye out. The witness testified that there was not room, as he was standing, to use a large hammer. That there was one there, weighing 12 or 14 pounds, but it was too heavy. He also testified that, "when Mr. Higley told me to use the riveting hammer, he further told me to use it until he could have the flogging maul fixed. That he would send it to the shop. Cannot say whether it was sent to the shop or not." Ed Lewellen, a witness for plaintiff, who was at work on the iron bridge at the time of the injury with him, and saw him when he received the injury, testified that the riveting hammer which plaintiff was using was not adapted to the work to which he was applying it. He did not hear any one tell plaintiff to use it. The witness had previously broken a flogging hammer, weighing six pounds. There were two of these. Plaintiff should have used one of them. The riveting hammer is a tool furnished to do the "riveting" with. Plaintiff was injured by attempting to drive the drift pin out with an understroke of the hammer, striking the pin on the far side from him with the near side of the face of the hammer, jumping a scale from the near side of the face of the hammer into his eye." There is other evidence corroborating plaintiff's testimony, to the effect that Higley, when plaintiff informed him that the "flogging maul" or hammer was broken, told him to use a small hammer, to which plaintiff replied that that hammer was too small for such use. Some of the witnesses say he then told plaintiff to take a sledge hammer, etc. The superintendent of the bridge company, Higley, testified that when he employed plaintiff the latter represented that he was an experienced "riveter." He then described the process of riveting, as described substantially by plaintiff. He testified that he did not tell plaintiff to use the riveting hammer for "drifting;" that it would be a waste of time to use it, and contrary to all of his experience. The "flogging maul" and "sledge" hammer were of the same material, and in all respects similar, except that the former has a face on each end and the sledge has one on one end only. They were used for the same purpose. There were two riveting crews. Plaintiff was foreman of one. His crew had a defective maul, but had a sledge hammer adapted to the work of driving the drift pin out, etc. Such is a part of the testimony of Higley. All of the witnesses who testified on that point concur in the statement that the riveting hammer was not adapted to the purpose for which plaintiff used it. There was proof that it was a common and ordinary occurrence for chips and splinters to fly from steel hammers. One witness on this point testified that he "had never seen a hammer that would not chip, if a glancing lick was struck with it." That it was one of the "ordinary...