Hightower v. Gray

• Decision Date: 26 October 1904
• Parties: HIGHTOWER v. GRAY.
• Court: Texas Court of Appeals

83 S.W. 254

HIGHTOWER v. GRAY.

Court of Civil Appeals of Texas.

October 26, 1904.

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

Action by John Hightower against Thomas H. Gray. From a judgment for defendant, plaintiff appeals. Affirmed.

C. L. Bass, for appellant. Ogden & Brooks, W. H. Lipscomb, and Walter P. Napier, for appellee.

FLY, J.

Appellant sued to recover damages from appellee alleged to have accrued through the negligence of appellee, his employer, in ordering him to engage in excavating underneath a rock which fell upon and injured him. Appellee answered, charging contributory negligence and assumed risk. The court instructed a verdict for appellee. Appellant swore that he applied to appellee, a laundryman, for work, and he employed him to make an excavation underneath his place of business, to be used as a cellar. Appellee told appellant how he wanted the work done; that he wanted him to tunnel through the ground and knock down the rock above his head with a sledge hammer; that he continued to do this for seven or eight days, and was engaged in breaking down the rock, when a large piece fell on him and injured him. He thus describes the occurrence: "I was probably digging the cellar 20 feet wide. Each slug was five feet digging it up. I did that as a day's work, and kept on working all through the day—go on—dug it all across, and would block it off here, and knock it down the next day; and I would start yonder, and bring up that space until I carried the whole piece across. The last day I was there —I think it was about half past five in the evening—on this corner (indicating) there was a great big piece of limestone rock right on the corner. He says to me, `Come up here; I want you to dig this down.' I said, `All right, sir,' I stopped work over there (indicating), and came up here (indicating), and commences tunneling under there (indicating), and I had it about that high (indicating), up to the rock, where I had tunneled under as far as the pick would let me dig, and all at once this piece broke from near the ceiling of the floor. The whole piece broke from under the ceiling of the floor. My wheelbarrow was right here, and shovel, and as fast as I got down, I wheeled it out on the outside. The character of the rock looked like it had three different kinds—white limestone, gray limestone, and then comes a white flint. Fire would fly out of it. I call that flint rock. In that part of the rock, in digging, the lime—white limestone rock mixed with gray rock—and when I was digging I could block out a piece sometime probably this big, and when you would strike it it would chop off in pieces until you came to the solid rock; then I had to take the sledge hammer to it. I was not experienced in working in rock. Had never dug in rock or tunneled in my life. Mr. Gray did not say anything about the rock business to me. Nothing was said between Mr. Gray and myself in reference to my experience or inexperience in doing this kind of work. I did not know the rock was liable to fall on me. All I knew was to go ahead and do the work." On cross-examination he stated: "I worked there 7 or 8 days, digging as he told me. I was breaking down rock, striking up under it, breaking it, and jarring it so as it would break down; and I took it down—knocked up under it and the ledge of rock to fall down; and I had been doing that kind of work ever since I commenced. I had been doing this, and carried it out in the wheelbarrow. It did not fall every time I would knock it. Sometimes 20 licks before it would fall. He told me it would break if I struck it that way. I knew it would break if I knocked on it until it did break, and that was his orders. When I broke off a piece it was bound to fall. I say when I hit a piece under it, and knocked it off, it came down. After it came down, it is down, and did not fall any more. The piece I was breaking off usually came right down; but the other part all came from under the ceilings—all that broke; and that rock, I wasn't knocking under that; I was picking under that, I was tunneling under that, when it came down. I was digging under it with a pick, and the whole corner fell. This was the first time that it fell. A large piece about 14 inches fell from under the ceiling. That was the whole south corner. It was as high as I could reach standing under it, and have room all the way up to break to the top. I had never done any tunneling before. I did not know anything about the work. As I told you before, I wanted to do an honest day's work. I was tunneling under the rock when it fell on me, using a pick to dig with."

John Sutchiff, a stone contractor, stated that he had experience in making cellars; that in digging a cellar like the one in which appellant was injured he would satisfy himself as to the character of material that was to be excavated before he would put a man to work underneath it; that he would not consider it absolutely dangerous to go underneath rock like that underneath which appellant was working when hurt, provided the top was firm, and no powder had been used about the place. If the top was loose, then he would use supports. He further stated: "The man working there ought to know more about whether pieces were coming off, and the nature of the stuff he is working with. I would depend upon the nature of the material. Another man standing by watching would know more of the nature of the material—the character of the material. Whether rock was falling or whether rock was loose or not is a matter that could be seen upon examination by one man as well as by another."

H. B. Salliway, a former contractor in rock, swore that he considered it unsafe for a laborer to work in the kind of material in question with having supports.

R. F. Alexander swore: "I am a practical contractor, and have done quarrying work in stone as such. If a man is tunneling in a concrete rock, he would be as able to see danger of rock breaking and falling as his boss. I think any man doing the work that plaintiff was—any man of good common sense—could determine whether that was safe to do that or not. If it is being done, and a man is observing, seeing a loose rock falling occasionally, it would be dangerous. If he had any judgment, and could see there was any loose rock at all, it wouldn't be necessary to put up anything at all. If I was doing that work I would watch it closely, and if I saw in hammering underneath I had jarred or broken the rock above, I would certainly take the precaution to guard against it. But that would have to be observed constantly. The jury can determine that as well as I can. I can't say any more about it than any other ordinary man. That is a matter of common observation. A man of ordinary intelligence, if he was cautious, he might tell it as well as anybody else."

It is the duty of the master to see that the instrumentalities and methods adopted by him...