Lowrey v. Fitzhugh

• Decision Date: 13 January 1913
• Citation: 153 S.W. 1190
• Parties: LOWREY v. FITZHUGH et al.
• Court: Texas Court of Appeals

153 S.W. 1190

LOWREY v. FITZHUGH et al.

Court of Civil Appeals of Texas. Galveston.

January 13, 1913.

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

Action by C. C. Lowrey against P. A. Fitzhugh and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Greer & Nall and T. H. Bowers, all of Beaumont, for appellant. Smith, Crawford & Sonfield, of Beaumont, for appellees.

McMEANS, J.

Appellant, C. C. Lowrey, plaintiff in the court below, brought this suit against the appellees, P. A. Fitzhugh and the Beaumont Cotton Oil & Refining Company, defendants, to recover damages for personal injuries sustained by him while in the employment of defendants. The case was tried before a jury, and at the conclusion of the trial an instructed verdict was returned for the defendants, upon which a judgment in their favor was accordingly entered, and from which the plaintiff has appealed.

The evidence in the record justifies the following findings of fact: The defendants were raising several buildings or structures, among which was a water tower. They had a large number of persons employed in this work, the plaintiff being among the number, he being employed as a helper. The day before he was hurt he was directed to work on the water tower. D. F. Faust, an employé, had charge of the plans and specifications which had been prepared by defendant Fitzhugh and was foreman of this job, and as such had the authority of superintendence, control, and command of the plaintiff and the other employés working with him. Faust himself worked with the others in the construction of the tower. The others so engaged, besides plaintiff and Faust, were A. L. Taylor, a carpenter, and Rado Janes, a negro, who was a helper. This water tower had four pillars, one at each of its corners, upon which the main structure rested. From each corner a square post was set up in lengths of 20 feet. Horizontally at every 10 feet in height the posts were braced with similar timbers, and also with cross-sectional or x-braces diagonally. At every 10 feet temporary scaffolding or stage planks were placed across the corners on the inside of the tower, reaching from one horizontal brace to another. This was done for a walk-way for those working at an elevation, and when one 10-foot height of bracing work was completed this staging or platform was carried from the lower up to the next 10-foot level. These platform planks were not fastened or nailed down because they had to be moved from one elevation to the one next above as often as the upper elevation was constructed to receive them, which was from 30 minutes to an hour. The matter of making these platforms safe for the men engaged on the work was left to the men themselves. At the time plaintiff was injured, he and Faust were attempting to hoist a piece of bracing timber up to Taylor to nail in place about 20 feet above them. The method of hoisting was as follows: A pulley was attached to a bean above the 20-foot level. A rope ran through this pulley with both ends reaching to the ground. A piece of bracing timber was tied to the rope for hoisting. This piece of timber was on the ground outside of the tower, and Faust and plaintiff, by his direction, were pulling on the other end of the rope from the inside. Almost immediately after they began pulling on the rope, it came in contact with one of the stage planks on the 20-foot level, dislodging it and causing it to fall, and in falling it struck plaintiff and injured him severely. The afternoon before they had put up three sets of these braces; and the stage planks were moved one time that afternoon. Plaintiff helped to put on the lower braces. He handed them up, but did not remember whether it was Faust or Taylor he handed them to. Later they were moved to the second brace. Before going to work with Faust and Taylor on the water tower, plaintiff had worked at different parts of the construction work. He had assisted in weather-boarding the lintroom and other walls of the building where scaffolding was being used as the work progressed from the ground. On these scaffolds stage planks for the men to walk on were used, and they were securely nailed down as a precaution against danger to those engaged in that work. Plaintiff refused to say whether he believed at the time that the stage plank which fell upon and hurt him was nailed down or otherwise made fast.

The charge of the court simply instructed the jury to return a verdict for defendants, and it cannot be gathered from the charge or the verdict the particular reason which actuated the court in so instructing them. It may be that, upon review of the facts as above stated, the court was of the opinion that no actionable negligence of the defendants or of any vice principal of theirs is shown. While appellant by his assignments of error undertakes to negative many supposable reasons for the giving of the charge, he does not undertake to negative the theory that the court decided that the facts disclosed no such negligence.

By his first and second assignments of error appellant complains, in effect, that the court erred in giving the peremptory charge referred to, for the reason that his original petition stated a good cause of action. All we need say in disposing of these assignments is that it sufficiently appears that the court did not give the charge upon the theory that the petition was bad on demurrer. The record shows that a general demurrer was urged, but overruled. If after this the court had changed its mind as to the sufficiency of the petition and felt impelled to change his ruling and sustain the demurrer, no doubt this would have been done in such a way as to afford appellant an opportunity to amend.

The third and fourth assignments are as follows: Third. "The court erred in instructing a verdict for defendants on the theory that Faust (defendants' employé) was a fellow servant with plaintiff." Fourth. "The court erred in instructing a verdict for the defendants, in that Faust was a vice principal, having control and direction over plaintiff in the performance of his duties at the time of his injuries."

It is not pretended that Faust had the authority to employ and discharge the employés with whom he was working in the erection of the water tower. Appellant, however, contends that the authority conferred upon Faust to direct and control plaintiff in the discharge of the duties he was performing when hurt made him a vice principal of defendants, even in the absence of the power to employ and discharge, and, in support of this contention, cites McCracken v. Lantry-Sharpe Contracting Co., 45 Tex. Civ. App. 485, 101 S. W. 520, Southwestern States Portland Cement Co. v. Riser, 137 S. W. 1188, and Williams v. Kirby Lumber Co., 136 S. W. 1182. In the case first cited, the late Associate Justice Eidson of the Austin Court of Civil Appeals in criticising the charge given in that case, to the effect that if a servant was in charge of the construction of a rock-crusher plant, and had authority to direct the details of the work, and of the workmen engaged upon the work, but had no authority to hire and discharge, then such servant would be...