Houston Textile Mills v. Montgomery

• Decision Date: 30 April 1935
• Docket Number: No. 10099.,10099.
• Citation: 83 S.W.2d 754
• Parties: HOUSTON TEXTILE MILLS v. MONTGOMERY et al.
• Court: Texas Court of Appeals

Page 754

83 S.W.2d 754

HOUSTON TEXTILE MILLS v. MONTGOMERY et al.

No. 10099.

Court of Civil Appeals of Texas. Galveston.

April 30, 1935.

Rehearing Denied May 16, 1935.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by E. O. Montgomery, for himself and on behalf of the Employers Liability Assurance Corporation, Limited, of London, England, against the Houston Textile Mills, wherein Bailey Jones and another intervened as parties plaintiff. From a judgment, defendant appeals.

Reversed and rendered.

Fulbright, Crooker & Freeman, of Houston (W. B. Bates and Chas. A. Perlitz, Jr., both of Houston, of counsel), for appellant.

Vinson, Elkins, Sweeton & Weems, John Snell, and Fred L. Perkins, all of Houston (C. M. Hightower and E. E. Townes, Jr., both of Houston, of counsel), for appellees.

PLEASANTS, Chief Justice.

This suit was instituted by appellee E. O. Montgomery for himself and on behalf of the Employers Liability Assurance Corporation, Limited, of London, England, which concern paid him certain compensation on account of the injury sustained by him while working in the course of his employment. His former wife, having been divorced after the injuries were sustained, joined by her present husband, Bailey Jones, intervened as parties plaintiff, setting up a half interest in and to any amount which the plaintiff, E. O. Montgomery, might recover. The suit was to recover certain alleged damages resulting from the plaintiff's sticking a nail in his foot while performing services for the A. T. Vick Electric Company, who were installing electrical equipment in certain buildings being constructed for the defendant.

The trial in the court below resulted in a verdict and judgment in favor of appellee for the sum of $5,000, $394.30 of which amount was awarded the assurance corporation, and of the remainder one-half was adjudged to appellant Montgomery, and one-half to intervener Mrs. Bailey.

This is the second appeal of this case. The opinion of this court on the first appeal, affirming a judgment in favor of the defendant Textile Mills, is reported in 24 S.W.(2d) 783. A writ of error was granted from our judgment of affirmance and the Supreme Court set aside our judgment and reversed and remanded the cause to the trial court for retrial. The opinion of the Commission of Appeals reversing and remanding the case, which was approved by the Supreme Court, is reported in 45 S.W.(2d) 140, 142, 143.

The trial from which this appeal proceeds was upon the same pleadings as the former trial, but the undisputed evidence on the last trial upon the vital issue in the case is wholly different.

All of the evidence shows that the warehouse in which plaintiff, Montgomery, received his injury was in course of construction, and at the time of the accident by which plaintiff was injured was in the possession and control of the contractor, the Street Construction Company. This company also had a contract with defendant for the construction of a mill building located on the same premises as the warehouse, and about 100 yards distant therefrom. Neither of these buildings was finished and both were in the possession and control of the contractor. The defendant also had let contracts for furnishing and equipping the buildings with the necessary appliances and machinery for carrying on a textile manufacturing business. Whiting Machinery Works of Whitingville, Mass., and the Crompton & Knowles Loom Works of Worchester, Mass., had the contract for furnishing and erecting the textile machinery in the factory building. The Park Cramer Company furnished and installed the automatic sprinkler system for the prevention of fire and a humidifying system necessary for the textile mill. A. T. Vick Electric Company (plaintiff's employer) had the contract for doing all the electrical work, including the wiring of the two buildings for lighting purposes and the running of machinery and elevators and installation of the motors which were furnished by General Electric Company.

The general building contractor necessarily began his work first, but as the work progressed the other contractors came in with their respective crews and during a considerable portion of the time while the buildings were being constructed all of the contractors were simultaneously engaged in the performance of their contracts. The general contractor, on account of delay in receiving certain large timbers necessary for the mill building, had to delay the installation of the flooring in such building. As a consequence, the factory building was not ready for the machinery when it arrived. Houston Textile Mills, after securing the permission of the general contractor, stored this machinery in the warehouse until the mill building was ready for its installation. The plaintiff, while installing wiring for the lighting of the warehouse under his employment relation with the A. T. Vick Electric Company, stepped down from one of the looms, which he was using for scaffolding, and stepped upon a nail protruding through a strip of lumber lying on the floor, which caused the injuries of which he complained. His employer carried workmen's compensation to cover such injuries and he had received compensation from the assurance corporation at the rate of $20 per week for the total sum of $349.30. He filed this suit against the Houston Textile Mills for himself and for the benefit of the insurance company, alleging several grounds of negligence which may be summed up as follows:

First, that the Houston Textile Mills, as the owner of the building, was negligent in not furnishing him a safe place to work; second, that the Houston Textile Mills had been negligent in that it had uncrated the machinery and left a piece of the crating material in the warehouse with the upturned nail; third, that the building was dark and he could not see where he was stepping; and, fourth, Houston Textile Mills was liable for failure to have the building sufficiently lighted so that he could see where he was stepping.

The only issue of negligence of the defendant as the cause of plaintiff's injury submitted to the jury is found in the following special issues:

"No. 1: Do you find from a preponderance of the evidence that the defendant, its agents, servants, or employees uncrated any of the machinery belonging to the defendant in the room in which plaintiff was working on or about October 8, 1926?"

"No. 2: Do you find from a preponderance of the evidence that the defendant, its agents, servants, or employees left upon the floor of the room in which plaintiff was working on October 8, 1926, a board or plank with nails in it from such crated machinery and upon which plaintiff was injured?"

The jury answered each of these questions in the affirmative. Upon these findings the jury predicated their further findings of negligence of defendant as the proximate cause of plaintiff's injury.

From this statement of the issues submitted to the jury, plaintiff's right of recovery against defendant depends wholly upon the sufficiency of the evidence to sustain the findings of the jury that defendant's agents, servants, or employees uncrated machinery of defendant in the room in which plaintiff was working on or prior to the day of his injury, October 8, 1926, and left upon the floor of the room a board or plank with nails in it, which they had taken from the crated machinery, and by which plaintiff was injured.

The testimony of each of the three witnesses who handled this machinery when it was placed in the warehouse and when it was taken therefrom and installed in the mill building is that none of it was uncrated by them in the warehouse, and that it remained crated during all the time it was kept in the warehouse. The contract for the purchase of the machinery required the seller to install it in the mill, and each of these witnesses testified that the agent or employee of the seller in charge of the installation of the machinery called for their assistance in moving the machinery from the warehouse into the mill building and there installing it, and that when they moved the machinery from the warehouse into the mill building none of it had been uncrated and all of its uncrating was done in the mill building. The following quotation from the testimony of witness Greening is fully corroborated by the testimony of all of these witnesses:

"Q. When was the machinery other than the motor, the elevator motor and such equipment stored in the warehouse, when was the machinery moved out of the warehouse and placed in the mill? A. About November the 8th, our records show that the erectors from the machinery company arrived November 8, 1926, and they immediately started moving the machinery in and setting it...