Lone Star Brewing Co. v. Willie

• Decision Date: 04 November 1908
• Citation: 114 S.W. 186
• Parties: LONE STAR BREWING CO. v. WILLIE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

114 S.W. 186

LONE STAR BREWING CO. v. WILLIE.^†

Court of Civil Appeals of Texas.

November 4, 1908.

On Rehearing, December 9, 1908.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Hugo Willie against the Lone Star Brewing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Onion & Henry and Wm. Aubrey, for appellant. Nat. B. Jones and M. W. Davis, for appellee.

NEILL, J.

This suit was brought by appellee against the appellant to recover damages for personal injuries. The allegations contained in plaintiff's first amended original petition and his trial amendment thereof are, in substance, as follows: "That on October 10, 1906, defendant owned a brewery, and maintained in connection therewith an ice-house, in which were stored large blocks of ice; that at the time plaintiff was in defendant's employ as a common laborer; that, in loading a wagon with ice, a chute extending from the icehouse and a plank or skid extending from the end of the chute to the wagon were used in conveying the blocks of ice; that the chute was about 14 feet long and about 14 inches wide, and the skid, which extended from the chute to the wagon, about 4½ feet long; that at the time of plaintiff's injury the skid was connected with the chute by being inserted in a slot, cuff, groove, fastenings, and connections at and under the mouth of the chute; that the said slot, cuff, groove, fastenings, and connections of said ice chute were weak, insufficient, old, worn, slick, and not sufficiently tight, strong, and secure to hold, and especially to hold in position on the wagon, the board, plank, or skid to be and inserted therein on this occasion, being the one furnished by defendant for that purpose, and that, by reason of the aforesaid condition of said groove, slot, cuff, connections, and fastenings, the use of said chute and board, plank, or skid for the purpose aforesaid was extremely dangerous and unsafe to those using same in the accustomed way, and in the way plaintiff was then using same to convey ice over and along them to and upon defendant's wagon or wagons, and said condition rendered it unsafe and dangerous for employés and plaintiff using said appliances for said purpose, in that in the aforesaid condition it did not sufficiently hold the said plank or skid in position or place upon the wagon to be loaded, but permitted and allowed it to move and become displaced while being used for said purpose, thereby exposing employés using the same for said purpose in the accustomed way and specially this plaintiff, to danger and injury; that plaintiff at the time of his injury did not know of the said defective, unsafe, and dangerous condition of the ice chute, and particularly of the groove, slot, holdings, fastenings, and connections at the point of connection with the board, plank, or skid used therewith, and, while plaintiff was in the act of conveying ice over and along said appliances by means of the same, and while standing upon said plank for said purpose, as was usual and necessary under the circumstances, the end of said skid, plank, or board, resting upon said wagon, by reason of the defects aforesaid, moved, slipped, was displaced, and fell, whereby plaintiff was directly thrown upon the ground, and the said large block of ice which he was loading was precipitated upon his right hand and the fingers thereof, thereby severely cutting, mashing, bruising, lacerating, and injuring said hand, and especially the forefinger and the two middle fingers thereof, so that, by reason of said injuries, it became necessary for said forefinger to be amputated, which was done, and two of the other fingers of said hand were rendered stiff and useless to plaintiff, whereby the use of said fingers has been permanently destroyed, impaired, and injured, and plaintiff has lost the free and full use of said hand and fingers; that all of his injuries are permanent, and have, and will in the future, diminish plaintiff's capacity to use his said hand and to do physical labor"; and that, by reason of his injuries so negligently inflicted, plaintiff has been damaged in the sum of $10,000. The defendant answered by general and special exceptions to plaintiff's petitions, a general denial and by pleas of assumed risk, and contributory negligence. The trial resulted in a verdict and judgment in plaintiff's favor for the sum of $5,000.

As the tenth assignment of error complains of the refusal of defendant's request of a peremptory instruction of a verdict in its favor, we must examine and consider the evidence in order to determine whether the court erred in refusing the request. The insistence of defendant are that there is no evidence tending to prove the allegations of its negligence, and that the evidence shows as a matter of law that plaintiff's injuries were incurred either from a risk incident to his employment, or from his contributory negligence. If, therefore, this assignment should be sustained, it will become unnecessary to consider any of the others; for in that event (the evidence having been fully developed upon the trial) our duty will be to reverse the judgment and render one for the defendant. In considering the question, we shall bear in mind the principle that it is only when the facts are undisputed, and are such that reasonable minds may draw but one conclusion from them, that the question of negligence is ever considered one of law by the court. The "question of negligence," however, to which this rule is referable, is one that is made by the pleadings; for courts have nothing to do with an issue that lies entirely outside of them, though the testimony may, if the matter were pleaded, raise such a question. An issue of fact, in order to authorize its submission to the jury, must arise both from the pleadings and the evidence. From this it follows that, though the pleadings may authorize the admission of testimony upon an issue made by them, if there be no evidence tending affirmatively to support it, there is nothing to submit to the jury, and it becomes the duty of the court, if it is essential to plaintiff's case to prove the affirmative of the issue, to peremptorily instruct a verdict for the defendant. It will be observed from our statement of the pleadings that it was essential to plaintiff's recovery for him to prove affirmatively his allegations, or some of them, that the slot, cuff, groove, fastenings, and connections of the ice chute were weak, insufficient, old, worn, slick, not sufficiently tight, strong, and secure to hold in position on the wagon the plank or skid furnished by defendant to be inserted therein on the occasion of his injury, and that, by reason of such defective condition of said groove, slot, cuff, connections, and fastenings, the use of the plank or skid for the purpose stated was dangerous and unsafe to those using the same in the usual way and manner plaintiff was using it when injured; that it was negligence in defendant to furnish its servants with such defective appliances for use; and that such negligence was the proximate cause of plaintiff's injuries. The allegations as to the defects in the ice chute are somewhat ambiguous and obscure. If words "slot, cuff, groove," were intended to relate to and qualify the words "fastenings and connections," and if it should appear from the evidence that the chute had no such fastenings and connections as are characterized by the words, "slot," etc, or any of them, there would necessarily be a total failure of proof upon the issue of defendant's negligence. If, on the other hand, it was not intended that the words "fastenings and connections" should be limited or characterized by the words slot, etc., there would be no allegations as to what the "fastenings and connections" of the ice chute were. If, therefore, it were necessary to pass upon the assignments of error which complain of the court's overruling the special exceptions to plaintiff's petition which point out the uncertainty of the allegations as to defendant's negligence, we should be strongly inclined to sustain the objection. But, as under our view of the evidence the case can be disposed of by giving plaintiff's pleadings the most favorable construction to him they will bear, it is unnecessary to pass upon the sufficiency of his pleadings in this regard.

Now, in determining the questions raised by the assignment first referred to, we will review the evidence. It is undisputed that on October 10, 1906, the plaintiff, while in defendant's employment and engaged in loading one of its ice wagons, and in the act of lifting and placing thereon a large block of ice weighing about 210 pounds, was thrown to the ground by reason of the plank or skid he was standing on, which extended from the end of the ice chute to the wagon, slipping from its place, and that the ice fell upon and injured his hand as alleged in his petition. The plaintiff had been working for defendant 13 months when injured. During that time he did any kind of work defendant required of him, and when injured was engaged in hauling ice, helping the car loaders and hauling beer, but had been engaged in loading ice off and on as long as he worked at the brewery, and was familiar with the methods adopted and the appliances used by defendant in loading ice. He described them thus: "The distance between the door of the icehouse, from which I took the ice to be loaded, was, I think, at least 18 steps, between 16 and 18 feet. The blocks of ice were conveyed from the door of the icehouse over a chute, or slide, into door of the icehouse over a chute, or slide, into the wagon. There is a big platform where the chute is on from the icehouse hole, * * * where the ice is dumped out of the cans into this chute, and it comes down into the wagon. Only the chute extends as far as the big platform, and then the wagon stands between 4 and 4½ feet from the big platform, about 4 feet, and then there is a little...