Industrial Lumber Co. v. Bivens

• Decision Date: 06 November 1907
• Citation: 105 S.W. 831
• Parties: INDUSTRIAL LUMBER CO. v. BIVENS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

105 S.W. 831

INDUSTRIAL LUMBER CO. v. BIVENS.^*

Court of Civil Appeals of Texas.

November 6, 1907.

Rehearing Denied December 4, 1907.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by Dennis M. Bivens against the Industrial Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood and Parker & Hefner, for appellant. Hardy & Hardy and McCoy & Moss, for appellee.

NEILL, J.

This suit was brought by Dennis Bivens against the Industrial Lumber Company to recover damages for personal injuries sustained by him, through the alleged negligence of the defendant, while in its employ as operator of a trip machine in its sawmill at Vinton, La. The defendant pleaded not guilty, contributory negligence, assumed risk, and negligence of a fellow servant. The trial resulted in a verdict and judgment in favor of the plaintiff for $6,000.

His injuries were inflicted on March 31, 1904. At the time they were sustained, he was a minor, and was also a minor when the case was tried, but his disabilities had been removed in accordance with the laws of the state of Louisiana, where he resided before the suit was instituted. To comprehend the nature of the case, it is necessary to describe the machinery and appliances of the sawmill, and the manner in which they were operated at the place and time the plaintiff was injured. There is a carriage track upon which the carriage runs that conveys the logs to the circular saw. In front of the saw, in the direction the logs are carried, is a table called the "live roller table," which is about 4 feet wide, and about 72 feet long. Extending across this table are a number of rollers about an inch in diameter; about half of the circumference extending above the top of the table, and the other half being below its surface, They are about 4 feet apart, and when in operation all resolve (if in proper working order) with equal motion in the same direction that the circular saw does. One of these rollers, however, which was near the far end of the table and beyond the space between the edger table and edger saws, and where plaintiff was standing, which are hereinafter described, was out of fix, so that it did not revolve, and was in such condition as to be called "dead" by the witnesses to the accident, and had been in such defective condition for several days prior thereto. Facing from the circular saw, to the left of, and about 5 feet from, and parallel with, the roller table, is another, called the "edger table," which is about 4 feet wide and 12 feet long; the end nearest the circular saw being about 44 feet from it. About 12 inches beyond this table and parallel with the end of it, are installed upon the same plane what are called "edger saws," 4 in number. There are two endless chains, 8 or 9 feet apart, parallel with each other, extending from the live roller to the edger table, the office of which will be explained in describing the purpose and operation of the machinery and appliances of the sawmill. These chains, when made to perform their office, are operated by means of a lever, moved by the pressure of the foot of one called the "tripman," who stands about 56 feet from the end of the live roller table nearest the circular saw, and between such table and a 12-inch space separating the edger table from the edger saws. He stands nearer the live roller table and faces the end nearest the saw track. There was no partition or stanchion in or opposite the space between the edger table and the edger saws to protect one opposite said space from the saws, which were exposed, or prevent him from being thrown against them in the way plaintiff was, as will be hereinafter explained. In running the sawmill the logs were placed upon the carriage and carried thereon to and through the circular saw, and then carried back and run through the saw again; this process being repeated until the sawing of the log was finished at such saw. The slabs and lumber, into which the log was thus sawed, were then placed upon the live roller table, and such pieces as were not fit for use were carried over the table, by the operation of its rollers, to the far end and thrown off into the "refuse pit." And such pieces as were to have the edges trimmed were likewise carried over the live rollers in the same manner opposite the edger table until they were upon the endless chains hereinbefore described, when the tripman, by pressing the lever, caused them to be lifted from such table and carried over the chains to the edger table, from which they were run through the edger saws by the edger saw man and their edges trimmed off.

At the time plaintiff was injured he was a tripman, operating the trip lever, and had only been in such employment three days up to that time. On this occasion a log 30 feet long was being run through the circular saw in the manner before described. Three slabs had been sawed from different sides of it and carried off by means of the live rollers and thrown into the refuse pit. A slab was then sawed off the fourth side of the log and placed upon the live roller table to be carried off in the same manner as the other three were. The slab, on account of the log being crooked, the curvature being on the side from which it was taken, was much thicker at each end than it was in the middle; the thickness decreasing from either end towards the middle of the slab. On account of the unevenness of the slab, it did not touch and receive the force of all the rollers, and, when its furthest end reached the "dead" roller, it slowly passed over it, and its end caught against the roller just beyond. In the meantime another slab had been sawed off which, together with a piece of timber which was 12"×12" in thickness made by the remainder of the log, was placed upon the live rollers to be conveyed thereover. This slab, and piece of timber, was conveyed over the rollers more rapidly, for the reason above stated, than the slab preceding it, which we have just described, and therefore pushed against the near end of the slab with such force as to cause it to break in the middle, and the plaintiff, who was standing at or near the place where the trip lever was operated, in the discharge of the duty of his employment, was struck on his side by the broken end of the piece of the slab, against the end of which such timbers were pushed, and knocked thereby over the near corner of the edger table onto a plank, the edges of which were being trimmed, and was either carried thereon or thrown against the edger saws, which were in operation, and thereby sustained serious, painful, and permanent physical injuries.

The evidence, in relation to the injuries sustained by the plaintiff in the manner above stated, was sufficient to warrant the jury in finding that the defendant was negligent in one or more of the following grounds, averred by plaintiff: (1) In putting plaintiff to work in a dangerous place, without instructing or warning him of the danger incident to his employment; he being at the time, on account of his age and inexperience, ignorant of such danger. (2) In allowing one of the rollers in the live roller table to become out of repair and "dead," so it would not perform its office. (3) In failing to erect a wall or stanchion between the position occupied by plaintiff while at work and the edger saws against which he was thrown and injured. The evidence is also reasonably sufficient to warrant the jury in finding that one or more of such acts of negligence was the approximate cause of plaintiff's injuries, and that such injuries were not caused by the negligence of any of his fellow servants, or by his own contributory negligence, or from any risk assumed by him as incident to his employment.

Conclusions of Law.

1. We are unable to detect anything in the action of plaintiff's counsel, complained of in the first assignment, which was calculated in the least to suggest to the jury that an insurance company, or any one other than the parties to this action, was interested in or would be affected by the result of the trial. Therefore the principle enunciated in the cases of Lone Star Brewing Co. v. Voith (Tex. Civ. App.) 84 S. W. 1100, Harry Bros. Co. v. Brady (Tex. Civ. App.) 86 S. W. 616, and Beaumont Traction Co. v. Dilworth (Tex. Civ. App.) 94 S. W. 352, has no application in this case.

2. The second and third assignments of error are grouped and considered together in appellant's brief. The second complains of the tenth paragraph of the charge, which is as follows: "Now, if, under the foregoing instructions, you shall find in favor of the plaintiff, you will allow him such a sum of money by your verdict as in your judgment will be a fair and reasonable and just compensation for the injury, if any, which has been sustained, and in measuring the same you will consider the pain and suffering that he has undergone, both mentally and physically if any, in consequence naturally and probably of the injury sustained by him, and such pain and suffering, if any, both mental and physical, as the evidence may show you he reasonably and probably will suffer in future consequence of such injury, if any; and if you find from the evidence that the injury sustained by him was of a permanent nature, and that on account thereof his capacity to labor and earn money has been diminished and permanently impaired, then, in addition to such damages as you may allow him for the pain and suffering, as above explained, you will also allow him such a sum of money as, if paid now, would be a just, fair, and reasonable compensation to the extent of his impairment or diminished capacity to labor and earn money in the future, between the time that he will have arrived at the age of 21 years, and so long as you find from the evidence he will probably live. But you cannot allow him anything for loss of time between the date he was injured and the time when he will...