Kirby Lumber Co. v. Bratcher

• Decision Date: 14 December 1916
• Docket Number: (No. 94.)
• Citation: 191 S.W. 700
• Parties: KIRBY LUMBER CO. v. BRATCHER.
• Court: Texas Court of Appeals

191 S.W. 700

KIRBY LUMBER CO. v. BRATCHER.

(No. 94.)

Court of Civil Appeals of Texas. Beaumont.

December 14, 1916.

On Motion for Rehearing, January 24, 1917.

Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.

Suit by Ben Bratcher against the Kirby Lumber Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Andrews, Streetman, Burns & Logue, of Houston, for appellant. E. B. Pickett, Jr., and C. H. Cain, both of Liberty, for appellee.

BROOKE, J.

This suit was brought in the district court of Liberty county, Tex., by Ben Bratcher, as plaintiff, against Kirby Lumber Company, as defendant, to recover damages for personal injuries alleged to have been sustained by him while in the employ of the Kirby Lumber Company at Fuqua, Tex., on or about the 31st day of December, 1913. The cause was tried by a jury, who on August 12, 1915, returned their verdict in favor of plaintiff for the sum of $3,333.35. Judgment was accordingly, on the same day, entered in favor of plaintiff against the defendant for the sum stated. In due course the defendant, Kirby Lumber Company, filed its original motion for new trial, and thereafter, with leave of the court, its amended motion for new trial, which motion was, on the 30th day of August, 1915, in all things overruled by the lower court. The defendant, upon the overruling of its said motion for new trial, gave notice of appeal to this court, and thereafter, in due course, filed its supersedeas bond and perfected its appeal.

The plaintiff, at the time he sustained the injury in question, was employed by the Kirby Lumber Company as a skidway man. His place of work was in the woods at a skidway to which logs were brought, and on which logs were placed preparatory to being loaded on log cars for transportation to the mill. On the day when he sustained his injury, logs were being brought to the skidway from the woods by a means known as "snaking," by which is meant the dragging of a single log at a time by a team with tongs attached to one of the logs. The plaintiff's duties with respect to the logs so "snaked" up to the skidway required him to be there with the cant hook when they dropped the log, or, as he says, "to take my cant hook and roll it down there so as to get the skidway filled." He had other duties to perform as skidway man. He was obliged to keep clear of all obstructions and in proper shape for use the regular passageway that the teams should follow when hauling or "snaking" the logs to be unloaded on the skidway, and as the driver of a team would haul the logs along that usual passageway, appellee's duty was to stand at the far end of the log as the driver approached, and signal him to stop whenever the log being "snaked" reached that point where its end would be about even with other logs already on the skidway. In circling the skidway upon which the logs "snaked" in from the woods were placed, was a pathway cut out for use by the carts when logs were being brought to the skidway by means of carts, and that pathway was also used regularly and customarily to get to the skidway when logs were being "snaked" in. The ground on the pathway which was used regularly and customarily to get to the skidway on the morning of appellee's injury had become muddy and boggy, and all the ground nearby was muddy and boggy, and the regular passageway, which was specially provided by the appellant as the route for its employés to use in hauling and "snaking" in the logs, was free from obstructions of every kind, while the route taken by the driver, Edwards, at the time the log he was "snaking" struck against and caused another log to strike appellee, was obstructed with trees, stumps, and quicksand holes.

The testimony warrants the conclusion that a coemployé of the plaintiff, Edwards, driving the four-mule team "snaking" in the logs, instead of following the cart passageway on around to the skidway, cut across so as to reach the skidway, taking a nearer course. We here append a diagram produced upon the trial by the plaintiff, a reference to which will aid in getting a substantially correct idea of the facts existing at the time of the occurrence. NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The directions of the points of the compass are indicated in the diagram by the letters N, S, E, and W. The circular line N, S, represents the pathway cut out for use of the carts. The several north and south lines on the inside of the circular line represent logs lying on the skidway. The lines which are between the letters T. & W. represent the tram track. The heavy black dot at the north end of the logs on the skidway represents the place where the plaintiff was standing at the time of the accident. The logs being "snaked" were being brought from the east of the skidway, and on the occasion of the accident Edwards, the coemployé, who was "snaking" in the logs, took a route to the skidway indicated by the line running from the circular line in a northwesterly direction to the logs on the skidway. When Edwards got to the logs on the skidway with the log he was drawing, the latter log came in contact with the end of the log on the skidway lying nearest the tram track, which latter log turned in such manner that the north end thereof came in contact with plaintiff's leg.

The regular and proper pathway at the time of the accident was muddy and boggy, but that did not render it any more difficult to drag the log that way than to follow the course Edwards took when appellee was hurt, for, as said before, all the ground nearby was muddy and boggy. Edwards testified in this respect as follows: That the log he was "snaking" struck a stump which was from 4 to 12 inches high, and had been cut from a sapling about 6 inches in diameter, and that the top was not in the passageway that was just beyond this log (on the skidway), but just on the other side. The one he was traveling on was not in it. There was not a clear way through there, as there were some trees in there. That he was coming "kinder quartering," that place he was coming to, quartering with the logs that had been cut out. That some small saplings had been cut out in there, but the big timber had not been cut from in there. That was pine timber in there; a pine ridge. That it was full of those holes you find in pine thickets, a kind of ravine, large, boggy, quicksand holes, mud, and stumps. That just before he hit the stump he looked around. That as driver "snaking" in these logs, his duty was to handle the team and watch where his log was going. That he had to pick out the path for the log where he was in doubt, or likely to hit a stump, and try to avoid hitting them. That when he was coming up the track with that log he was watching the log and trying to keep it from hitting the stump.

For further explanation of the diagram, it would be well to state that the logs were being "snaked" from some distance east of the skidway, and as the drivers came from that point and into the circular pathway, they were expected to continue on that route so as to come between the tram track and the logs on the skidway from the south and the letter S marked on the diagram and the letter X also marked thereon near the letter S, explain Edwards' testimony that if he had traveled along that usual pathway, so marked with said letters, he would not have hit the stump which was struck by the log he was "snaking." The letter C, which appears in the diagram near the lower part thereof, indicates that when the fore end of the log struck the stump, the rear end of the log was at that point marked C upon the diagram.

The paragraph of the petition relied on as the basis for recovery is as follows:

"That plaintiff's said injury was due to and caused by the negligence of the defendant, in this: Upon the particular `skidway' near which plaintiff was standing when hurt, as above alleged, there had been already placed about eight or ten logs in the proper and usual manner, that is, the logs had been properly rolled back to their place on the skidway and jammed close to one another; these logs were of forty-foot length; then next to those forty-foot logs upon the `skidway' were three shorter logs, and next to these three short logs and nearest the tramway upon the `skidway' was another log forty feet in length. And at the time of plaintiff's said injury, on account of very muddy and boggy ground, the logs were being dragged in one at the time, this method of hauling then being known as `snaking' the logs; and at that time a driver by the name of Selman Edwards was driving one of the teams that was `snaking' the logs, and plaintiff in the due and proper performance of his duty as `skidway man,' had taken a position near the north end of the three short logs on the `skidway' as above mentioned, so as to be out of the way of the team and driver as they came along the road or passageway between the `skidway' and tram track, and while standing there, this being his place of duty at the time, said driver (who had begun work that day) drove up with a log, `snaking' it, and instead of following the customary and proper road or passageway which had been cut out and marked out for following when so hauling the logs from the woods, he turned his team out of that usual and proper road or passageway, and coming from a southerly direction, when near the end of the logs on the skidway, opposite from where plaintiff was standing, made a short turn without watching and taking the proper precaution to prevent and avoid a collision between the log he was hauling and the logs on the `skidway,' and thus jerked the log which he was `snaking' into and against the south end of the forty-foot log which was lying on the `skidway' nearest the tram track, as above explained, and this caused the other end of that log to be suddenly and swiftly swung toward plaintiff (who as above alleged was standing near the opposite end of the...