Kampmann v. Mendoza

• Decision Date: 08 November 1911
• Citation: 141 S.W. 161
• Parties: KAMPMANN v. MENDOZA.
• Court: Texas Court of Appeals

141 S.W. 161

KAMPMANN v. MENDOZA.

Court of Civil Appeals of Texas. San Antonio.

November 8, 1911.

Rehearing Denied December 6, 1911.

Appeal from District Court, Bexar County; Arthur W. Seeligson, Judge.

Action by Antonia Mendoza against Mrs. E. S. Kampmann. From a judgment for plaintiff, defendant appeals. Affirmed.

Jno. F. Onion, E. D. Henry, A. McCloskey, and Jno. F. Onion, Jr., for appellant. Anderson & Belden, Perry J. Lewis, and H. C. Carter, for appellee.

JAMES, C. J.

The petition of Antonia Mendoza alleged in substance that defendant, in connection with the Menger Hotel, maintained an electric light plant and operated a laundry; that plaintiff was employed in said laundry, and was furnished by defendant with a certain electric ironer, and while plaintiff was in the discharge of her duty, using said ironer, the said ironer and its attachments, by reason of defendant's negligence, with a loud noise, which plaintiff believes to have been an explosion, flashed forth flames and sparks, which enveloped plaintiff, and seriously burned her right hand, wrist, and arm. She further alleged that defendant had negligently caused and permitted said ironer and its attachments to be in a defective and dangerous condition for use; that the electric wires which entered said ironer for the purpose of conveying electricity to it were dangerously, defectively, negligently, and improperly insulated, so that the wires came together, and thereby caused the said electrical explosion; that it was necessary in appliances of this kind, in order to prevent such explosions, for the defendant to maintain proper fuses, which would have avoided the disaster, but instead defendant negligently caused or permitted fuses to be used which were wholly unfit for the purpose, and in no way guarded said ironer against explosion; and that said acts of negligence caused and contributed to plaintiff's injuries, without any fault on her part, and prayed for damages, setting the same forth. Defendant pleaded general denial, contributory negligence, and assumed risk. A verdict was returned for plaintiff in the sum of $2,000.

The first assignment of error complains of the denial of a peremptory instruction for the defendant. Appellee undertakes to deny the right of appellant to have this assignment considered, for the reason, as appellant states, that defendant's requested charges Nos. 2, 3, and 4, which charges were given, asked to have the issues submitted. Inasmuch as the second of these charges sufficiently discloses that the court had already prepared or given its charge submitting the issues, we think it does not present a case of invited error. The assignment charges that there was no evidence adduced in the case which tended to show any liability on the part of the defendant. Under this assignment, appellant sets forth eight propositions of law, most of which embody indisputable principles—we might say, elementary principles.

We concede the principle that the employer's duty to the servant is to use ordinary care, commensurate, of course, with the dangers of the work, to furnish the servant with safe premises and appliances; that the burden is upon the servant to prove the negligence of the master; that proof of the accident and injury to the servant will, alone, not justify a recovery; that an event that cannot reasonably be anticipated or avoided by ordinary care is not actionable.

The question to be determined from the record, as invoked by this assignment, is whether or not plaintiff received her injury through some act of negligence on the part of her employer, or her agents, which was the cause of the flash or explosion which injured her. The testimony is clearly sufficient to show that she was injured in that manner, and as there is no complaint directed to the amount of the verdict the extent of her injuries is not...