Henry v. McCown

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Henry v. McCown, 140 S.W. 1170 (Tex. App. 1911)
• Decision Date: 08 November 1911
• Parties: HENRY et al. v. McCOWN et al.

140 S.W. 1170

HENRY et al. v. McCOWN et al.

Court of Civil Appeals of Texas. San Antonio.

November 8, 1911.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by J. E. McCown and others against George W. Henry and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

McFarland & Hadden, for appellants. Emmett B. Cocke and B. G. Haskell, for appellees.

FLY, J.

A. C. McCown and N. J. McCown, father and mother of J. E. McCown, instituted this suit for themselves and as next friends of the minor, J. E. McCown, to recover damages accruing from injuries inflicted on the latter while in the service of the appellants, E. F. Henry and George W. Henry, in their woodyard in the city of San Antonio. Appellants filed a general denial, and pleaded contributory negligence and assumed risk on the part of J. E. McCown. The cause was tried by jury, and a judgment rendered in favor of J. E. McCown for $4,000 and in favor of A. C. McCown for $100.

J. E. McCown, a minor, was in the employment of appellants in their woodyard in San Antonio, and was engaged in running the machinery therein; his only knowledge and experience of such machinery having been gained during the two months that he had been in the service of appellants. About March 11, 1909, a pulley on the machinery burst, and the minor told G. W. Henry that he ought to get a new pulley, but that was refused, and he was told to get an old piece of belting and wrap it around the shaft in place of a new pulley; the reason for not getting a new pulley being that he did not have time, and that it would cost too much anyway. G. W. Henry got the piece of belting and gave it to the boy, and went with him to the place. The minor endeavored to wrap the belting about the shaft, but could not get it to stay in place, and he was then told to start the machinery slowly, and wrap it while moving. In obedience to that order, the boy got down from the place where the shaft was, nine feet above the ground, which he had to reach by means of strips fastened to a post, and then returned, and while engaged in trying to wrap the shaft the belt slipped and caught on something, either the belt dressing or the shaft, and then suddenly jerked the right arm of the boy around the shaft, and crushed it to such an extent that it was amputated. His face was also cut. J. E. McCown had never performed the kind of work required of him when he was hurt, and did not realize the danger involved in its performance, and did not assume the risk arising therefrom, and was not guilty of contributory negligence in obeying the commands of his employer. He was hurt while performing a duty in the way the master had ordered him, and with the instruments furnished by him.

Not only did the court present the issue of assumed risk fully and fairly to the jury in the main charge, but gave three special charges on that subject, requested by appellants, in which it was reiterated that if the employé knew of the dangers and risks of repairing the pulley, or if the dangers were so open and apparent that one of his age, experience, and capacity would, in the exercise of ordinary care, know and appreciate the dangers, he could not recover, notwithstanding he was a minor, and although he was ordered to perform the work by his master. The risk in wrapping the shaft was not apparent, and the minor knew nothing of it, and could not have known by the exercise of ordinary care. Appellants are in no position to claim that there was no evidence to support a submission to the jury of the question of assumed risk, when they requested the submission of that issue to the jury. The rule that an appellant cannot complain of an erroneous instruction, where he requested an instruction embodying the same error, was first enunciated in this state by this court in Railway v. Sein, 11 Tex. Civ. App. 386, 33 S. W. 558, and was afterwards reiterated in the same case by the Supreme Court (89 Tex. 63, 33 S. W. 215, 558), in answer to a certified question. It has now become the settled law in this state. Poindexter v. Receiver Kirby Lumber Co., 101 Tex. 322, 107 S. W. 42; Alamo Dressed Beef Co. v. Yeargan, 123 S. W. 721; Railway v. West, 131 S. W. 839; Railway v. Rodriguez, 133 S. W. 690; Alamo Oil Co. v. Curvier, 136 S. W. 1132.

The employé could not, under the facts of this case, have been guilty of...