Hoot v. Walker County Lumber Co.

• Decision Date: 14 February 1920
• Docket Number: (No. 545.)
• Citation: 219 S.W. 544
• Parties: HOOT v. WALKER COUNTY LUMBER CO.
• Court: Texas Court of Appeals

219 S.W. 544

HOOT v. WALKER COUNTY LUMBER CO.

(No. 545.)

Court of Civil Appeals of Texas. Beaumont.

February 14, 1920.

Rehearing Denied March 3, 1920.

Appeal from District Court, San Jacinto County; J. L. Manry, Judge.

Action by Cleveland Hoot against the Walker County Lumber Company. From a judgment for defendant entered on directed verdict, plaintiff appeals. Affirmed.

Wm. McMurrey, of Cold Springs, for appellant.

Crook, Lord, Lawhon & Ney, of Beaumont, for appellee.

HIGHTOWER, C. J.

Appellant, Cleveland Hoot, brought this suit in the district court of San Jacinto county against the appellee, Walker County Lumber Company, claiming damages because of personal injuries alleged to have been sustained by him in consequence of alleged negligence on the part of appellee in furnishing him a defective mule to ride while performing the duties of his employment under contract with appellee.

Since no question arises upon the pleadings of the parties, we will state only substantially and briefly the allegations necessary to be considered in disposing of this case. Appellant alleged, substantially, that he was in the employ of appellee, hauling logs by means of a cart to which was hitched a team consisting of four mules, and that one of these mules, named "Wiley," was the saddle mule of the team, and that such mule was furnished appellant by appellee's foreman, with instructions to ride him while driving the team, and that the mule so furnished him was old, stiff, and clumsy, all of which was known to appellee and its foreman, or would have been so known by the exercise of proper care on their part, but was unknown to appellant. He then alleged that on the day that he claims to have been injured he was attempting to drive one wheel of the cart over the end of a log, to which he intended to fasten the cart, and while in the act of so placing the cart that the log could be fastened to it, and while upon the mule Wiley, said mule fell down and caused appellant to be thrown and precipitated to the ground and injured, that the mule fell for no other reason than that he was old, stiff, and clumsy, and that appellee was negligent in furnishing such a mule for his use, and that such negligence was the proximate cause of his injury. Appellee answered by general demurrer and general denial and by other special pleas unnecessary to mention. The case was tried with a jury, and upon conclusion of the evidence the trial court, over the protest of appellant, peremptorily instructed a verdict for appellee on the ground, as stated in the instruction, that no negligence on the part of appellee had been proved, as alleged by appellant. Motion for new trial was made by appellant and overruled, and the case is now properly before this court on appeal.

The only question for determination by this court is whether there was sufficient evidence adduced upon the trial to raise the issue of negligence, as pleaded by appellant.

We shall not undertake to quote literally the evidence bearing upon this point, but will state all the material portions of it substantially and fully. Appellant himself testified that he was an experienced man in the business or occupation in which he was engaged at the time of his injury, and had been following it for some three years; that he considered himself a fair judge of the fitness and suitability of mules to be used as the team which he was driving was being used at the time; that he had been working for appellee in the same capacity for some three months prior to his injury, but that the mule Wiley had not been in the team which he had been driving during that time, but that Wiley was put in his team on the day before the injury, and that he drove the team all that day with Wiley in it, but did not ride Wiley that day, but on the next morning he was told by appellee's foreman to ride Wiley and that in obedience to such instruction he put his saddle on Wiley and rode him all the morning in the team, and made several trips in getting out logs, and that after so riding him about half a day the mule fell down with him, as above stated. Appellant further testified that on the day before the injury he had not observed anything in the actions or looks of the mule Wiley to indicate to him that the mule was clumsy or stiff or for any reason unfit for the service in which he was used, nor did he observe anything in this mule on the day that he was injured and before the injury that would indicate that the mule was stiff or clumsy, or in any manner unfit for the service, though he had then been riding him at least half a day. He further testified that Wiley was a large mule, weighing somewhere between 1,200 and 1,500 pounds, and that he was a good-looking mule, and that there was nothing in his appearance to indicate that he was stiff or clumsy or in any manner unfit for the service, and that judging from the looks of the mule...