Hattaway v. Planters' Cotton Oil Co.

• Decision Date: 01 March 1917
• Docket Number: (No. 1734.)
• Citation: 194 S.W. 1119
• Parties: HATTAWAY v. PLANTERS' COTTON OIL CO.
• Court: Texas Court of Appeals

194 S.W. 1119

HATTAWAY v. PLANTERS' COTTON OIL CO.

(No. 1734.)

Court of Civil Appeals of Texas. Texarkana.

March 1, 1917.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by J. L. Hattaway against the Planters' Cotton Oil Company. From judgment for defendant, plaintiff appeals. Affirmed.

Appellant was employed by appellee to assist in tearing down an old wooden building it had used in operating a cotton ginning plant. In tearing away planks forming the floor of a platform 6 or 8 feet high from 2 by 4 inch pieces of timber to which they had been nailed, appellant used a pinch bar while standing on one of the pieces of timber. Because it gave way he fell to the ground, which was covered with pieces of old planks he and those working with him had torn from the building and thrown there. In falling one of his feet struck and was pierced by a nail projecting from one of the pieces of plank. His suit against appellee was for damages for the injury to his foot caused by the nail piercing it. In his petition he alleged that the injury he suffered was due to negligence on the part of appellee, in that the pinch bar it furnished him was broken, and therefore so defective as to make it necessary, when otherwise it would not have been, for him to stand on the 2 by 4 inch piece of timber to which the flooring was nailed while tearing it away, and was further guilty of negligence in failing to remove the pieces of old planks from the place where they were under the platform. In response to special issues submitted to them the jury found: (1) That appellee furnished to appellant the pinch bar which he used in tearing away the flooring; (2) that appellant was "guilty of contributory negligence in the way and manner he used" the pinch bar; and (3) in reply to the question, "what amount, if paid now, would be reasonable compensation for plaintiff for his injuries, if any, caused by the negligence, if any, of the defendant?" answered, "Damage $200." The jury failed to answer questions propounded to them by the court as follows:

"Question No. 2. Was the defendant guilty of negligence in furnishing the plaintiff with the pinch bar that plaintiff was using, in the condition it was in at the time of the alleged injury? Answer `Yes' or `No.'

"Question No. 3. Was such negligence, if any, the proximate cause of the injuries complained of? Answer `Yes' or `No.'"

On the findings of the jury as stated the court rendered judgment that appellant take nothing by his suit against appellee, for which he prosecuted this appeal.

J. W. Donaldson, A. P. Bolding and A. L. McRae, all of Bonham, for appellant. Cunningham & McMahon, of Bonham, for appellee.

WILLSON, C. J. (after stating the facts as above).

It devolved upon appellant to adduce testimony tending to show, not only that appellee was guilty of negligence, but that its negligence was the proximate cause of the injury he suffered. "Proximate cause" has been defined as "the direct cause, without which the injury would not have happened." Railway Co. v. Averill, 136 S. W. 98; Railway Co. v. Harton, 36 Tex. Civ. App. 475, 81 S. W. 1236; Hilji v. Hettich, 95 Tex. 321, 67 S. W. 90; Jones v. Walker County Lumber Co., 162 S. W. 420; Oil Co. v. Edgmon, 155 S. W. 1012; Railway Co. v. Smith, 133 S. W. 482. In the Harton Case the plaintiff claimed his injury was due to a defect in machinery he was assisting in installing in the defendant's shops. The court said:

"Before * * * the defect in the machinery, * * * could be considered the proximate cause of the injury, the evidence would have to show that such defect * * * was more than the mere occasion of the application of steam in order to expel the plunger. It would have to go further, and show that no...