Kennedy v. Wheeler

• Decision Date: 11 December 1924
• Docket Number: (No. 40.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 268 S.W. 516
• Parties: KENNEDY v. WHEELER.
• Court: Texas Court of Appeals

Page 516

268 S.W. 516

KENNEDY v. WHEELER.

(No. 40.)^*

Court of Civil Appeals of Texas. Waco.

December 11, 1924.

Rehearing Denied January 22, 1925.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action by L. O. Wheeler against Con T. Kennedy. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See, also, 256 S. W. 315.

Spell, Naman & Penland and J. W. Cocke, all of Waco, for appellant.

Weatherby & Rogers, of Waco, for appellee.

SPIVEY, J.

Appellee brought this suit against appellant for damages for the loss of his left hand and a portion of his forearm in an accident which happened to plaintiff while engaged in operating certain machinery, on or about October 13, 1922. Trial to a jury upon special issues resulted in a verdict and judgment for plaintiff. Defendant has appealed, properly presenting the matters herein discussed.

Defendant was engaged in running carnival shows, among which were "concessions," side shows, and certain machines called "rides" for the entertainment of patrons, these rides being spoken of as The Whip, Sea Plane, Ferris Wheel, and Butterfly. Each of these rides was propelled by its own gasoline engine. Defendant employed more than three persons and was not a subscriber to the Texas Employers' Insurance Association, and therefore could not defend by reason of contributory negligence or assumed risk. Vernon's Civ. Stat., art. 5246 — 1, 1918 Supp.

The Butterfly was a separate contrivance from the engine which propelled it, and the two were located some 20 feet apart, the power from the engine being communicated to the Butterfly by means of cogs and a shaft.

The engine was described as being operated by the explosion of gasoline in cylinders and having a fan and water cooling system, spark plugs, and valves, somewhat on the order of an automobile engine.

The power of the engine was applied to the Butterfly by means of cogwheels and a cog chain and a connecting shaft, the Butterfly being stopped or started by means of a clutch and clutch wheel in the hands of the operator at the engine. The Butterfly consisted of an upright post about 25 or 30 feet high, from the top of which arms extended, from which seats were suspended in which passengers rode. These seats moved in a circle, and also had some other motion not disclosed by the record, because the witnesses, instead of describing this motion, indicated it by gestures. The power was applied to the center post, which was caused to revolve and carry with it the baskets or seats. The operator ran the clutch and his assistants aided in loading and unloading the passengers by holding the swinging seats steady for them to embark and disembark.

The following is a description of the material portion of the gasoline engine viewed from a position in front of it; about waist high from the platform on which the operator stood there were two cogwheels and a connecting cog chain, operating horizontally, the driving cogwheel being a small one and to the right, and the driven cogwheel being larger and to the left. These two cogwheels were about 5 feet apart.

Also, on the same driving shaft of the engine was a small pulley and a belt, which connected with a larger pulley which ran the fan to cool the engine. This fan belt and its pulleys were located back of the cogs and cog chain. The upper portion of fan belt and of cog chain moved from right to left; the lower portion of each from left to right. The fan belt and cog chain ran parallel to each other, except that the fan was at a higher elevation than the cog chain, and likewise the driving pulley of the fan belt was some two or three times larger than the drive cog, so that the lower portion of the fan belt started from the under side of the fan pulley at a higher elevation than the upper portion of the cog chain, and descended at an angle of about 25 or 30 degrees and intersected the orbit of the upper portion of the cog chain about 18 or 20 inches from the right cogwheel, and intersected the orbit of the lower portion of the cog chain just before reaching the right-hand pulley and right-hand cog. In other words, about 18 inches of the lower portion of the fan belt could be seen and touched between the upper and lower portions of the cog chain; and about the same length of it could be seen and touched above the upper portion of the cog chain.

The cogwheels and chain were not guarded, screened, or covered in any way, nor were the fan belt and pulleys. The upper portion of the fan belt was entirely above the upper portion of the cog chain. The distance between the cog chain and the fan belt was 2 or 3 or 4 or 5 inches, which is as definite as can be stated from the evidence. Photographs of the engine are in the statement of facts.

The fan belt got to running partially off toward the operator. In order to shove it back, plaintiff put the back of his fingers against the fan belt about where the fan belt could first be seen under the upper portion of the cog chain and about 18 or 20 inches from the right-hand cogwheel. He was wearing gauntlets and some projection on the edge of the fan belt caught his glove and jerked his hand to the right and downward and into and around the right-hand cog, which crushed his arm about midway between hand and elbow, making amputation necessary. The ends of the fan belt were fastened together by a metal lacing, described as being about the size of baling wire, and this lacing had broken in one place and one of the ends was sticking out beyond the edge of the belt.

There was evidence that the supports or belts holding the fan and fan pulley were fastened into metal which was too thin to hold them, so that the bolts worked loose and permitted the fan and fan pulley to drop down somewhat, and that this caused the fan belt to run off. This defect first appeared Thursday night about 9 o'clock, before the accident on Friday morning about 9 o'clock. Plaintiff continued to run until about 10 o'clock Thursday night, when they shut down, which was an hour earlier than usual, because of the fan belt running off the pulley.

On Friday morning plaintiff was endeavoring to remedy the trouble of the fan belt running off, and had the engine running, but not the Butterfly. Three or four times during Thursday night and Friday morning before the accident plaintiff had shoved the fan belt onto its pulley in the same way as when he was hurt, and nothing caught his hand or glove. The above-mentioned projection was first discovered by another person about two hours after the accident.

There was no evidence that the fan belt was worn out or out of repair prior to this time, nor any other break in the lacing of the fan belt except this one. It does not appear why plaintiff could not have applied the same pressure to the upper portion of the fan belt — the portion which was moving from right to left above the upper portion of the cog chain, as the fan belt was coming off towards him, and coming off of both pulleys — first off of one and then off the other; but he stated that the way in which he attempted to replace it was the only way, and that it was easier to put it on while the machinery was running than when not. Nor does it appear, except by plaintiff's statement above, why he could not have reached the lower portion of the fan belt by going to the extreme right of the engine and reaching in between the cog chain and fan belt. Plaintiff testified that it could have been replaced from this position. Nor does it appear why he could not have applied the pressure to the lower portion of the fan belt which was above the cog chain.

Plaintiff's testimony disclosed some knowledge of and experience with machinery, not necessary to detail, but he stated categorically that he did not know anything about the operation of machinery. Practically all of the issues in the case were sharply contested.

The cause was submitted upon special issues, preceding which the court defined "negligence" and "proximate cause" as follows:

"By the term `negligence,' as used herein, is meant the doing of that which an ordinarily prudent person would not have done under the same or similar circumstances; or the failure to do that which an ordinarily prudent person would have done under the same or similar circumstances.

"By the term `proximate cause,' as used herein, is meant the act or omission which, in a continuing sequence, unbroken by any intervening agency, produced the injury complained of, and which injury ought reasonably to have been foreseen as the natural and probable result of such act or omission in the light of the attending circumstances."

Under the first issue the jury found that "at the time plaintiff was put in charge of the Butterfly machine at Tyler, Tex., he did not have sufficient mechanical knowledge to enable him to successfully operate said machine and make the ordinary repairs on same." There was evidence from which the jury could have found as they did in answer to this issue. They also found, in answer to the fourteenth and fifteenth issues, that putting plaintiff in charge was negligence or the proximate cause of the injury which happened.

In connection with issue No. 1 the jury found that at the time plaintiff was so put in charge, he did not represent to defendant or to defendant's agent that he had sufficient mechanical knowledge to enable him to successfully operate said machine and make the repairs on same. The substance of plaintiff's allegations was that he was inexperienced and ignorant concerning the running and repair of machinery, and that defendant knew this fact. Plaintiff testified that he was between 32 and 33 years of age at the time of the injury, and from his manner of testifying he appears to have been a man of at least ordinary intelligence and sense. It is also shown by plaintiff's testimony that he had worked about and with this particular machine for about three weeks. During two of these weeks his principal work...