Magnolia Paper Co. v. Duffy

• Decision Date: 14 April 1915
• Docket Number: (No. 5455.)
• Parties: MAGNOLIA PAPER CO. v. DUFFY.
• Court: Texas Court of Appeals

176 S.W. 89

MAGNOLIA PAPER CO. v. DUFFY.

(No. 5455.)

Court of Civil Appeals of Texas. San Antonio.

April 14, 1915.

Rehearing Denied May 12, 1915.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by R. J. Duffy, for himself and as next friend of Richard Newman Duffy, against the Magnolia Paper Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hunt, Myer & Teagle, of Houston, for appellant. E. T. Chew, of Houston, for appellee.

FLY, C. J.

R. J. Duffy, for himself and as next friend for his minor son, Richard Newman Duffy, instituted this suit to recover damages arising from personal injuries inflicted on the latter while he was in the employ of appellant. Appellant pleaded assumed risk and contributory negligence. The cause was tried by jury, and resulted in a verdict in favor of the appellee for $1,600, and in favor of appellant as to R. J. Duffy. From the judgment rendered on that verdict, appellant has perfected this appeal.

The evidence showed that appellee, a 14 year old boy, was an employé of appellant, and was engaged in running a machine for the purpose of printing paper bags; that it worked with a lever, and had two long iron rollers which revolved one above the other, the bottom roller having a gripper to catch the bags and draw them between the rollers. Appellee was engaged in feeding the machine with bags, and, while engaged in that duty, the machine began to run irregularly, slowing down, and then racing, when it caught a paper bag held by appellee and drew his left hand between the rollers and crushed his fingers, causing the loss of his middle finger and the disfiguring of his entire hand. The machine was not equipped with a foot brake, but in order to stop it the pulley belt had to be shifted. The machine had no fender or guard to protect the hands of employés from being caught, although it could have been equipped with such guard or fender without in the least impairing its usefulness. Appellee was not warned of the dangers of the situation, although the machine was dangerous. Appellee was damaged in the sum found by the jury.

The first three assignments of error complain of the action of the court in overruling exceptions to those portions of the petition containing allegations as to the machine not being equipped with a foot brake and fender or guard. The only proposition is:

"An employer is not required to furnish to his employé absolutely safe machinery, or to insure the safety of the employé."

The proposition seems to be a non sequitur to any exception made to the petition. The pleadings did not demand that the machine should be absolutely safe, and no one contends for any such proposition. Let the proposition be admitted, and how does it profit appellant? Of course, the authorities cited by appellant hold that it is the duty of the master to use reasonable care and diligence in furnishing safe appliances for the use of his servants, and the issue raised by the pleading was not the duty to furnish an absolutely safe machine, but the duty to use reasonable care to provide such a machine. It was for the jury to say whether ordinary care had been used in furnishing a machine without a foot brake and guard or fender. The mere fact that the machine was one customarily used for such purposes would not, as a matter of law, exonerate appellant from blame.

It is the rule laid down by the Supreme Court of the United States, as well as the Supreme Courts of a number of states, that after it has been shown that the defendant had used the same appliances used by other employers in the same line of business, the question still was open as to whether the particular instrumentality was reasonably safe, and that it is an issue for a jury. Wabash R. R. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605; Railway v. Behymer, 189 U. S. 468, 23 Sup. Ct. 622, 47 L. Ed. 905; Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784; Martin v. Railway, 94 Cal. 326, 29 Pac. 645; Redfield v. Railway Co., 112 Cal. 220, 43 Pac. 1117; Harvesting Co. v. Burandt, 136 Ill. 170, 26 N. E. 588; Railway v. Morrissey, 177 Ill. 376, 52 N. E. 299; Hosic v. Railway, 75 Iowa, 683, 37 N. W. 963, 9 Am. St. Rep. 518; Roy Lumber Co. v. Donnelly (Ky.) 103 S. W. 255.

Even though instrumentalities are the same as those used by all others in the same line of business, it is held in Texas that the use of such appliances may be negligence, and it is for the jury to determine whether the use of the machine was negligence or not. Railway v. Evansich, 61 Tex. 3; Railway v. Smith, 87 Tex. 348, 28 S. W. 520; Railway v. Duncan, 88 Tex. 611, 32 S. W. 878; Sincere v. Compress Co., 40 S. W. 326; Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 153; Lyon v. Bedgood, 54 Tex. Civ. App. 19, 117 S. W. 897; Wirtz v. Railway, 132 S. W. 510; Railway v. Neef, 138 S. W. 1168.

The standard of care exercised by a master is not what other masters do under like circumstances, but, as in all cases, the standard must be the exercise of ordinary care. Proof that an instrumentality is the same used by other masters in the same business may be a circumstance to be considered by the jury in passing upon the question of negligence, but in the final analysis of the matter ordinary care must be the test applied. Labatt, Mast. & Serv. § 947, and authorities cited in footnotes.

In this case the evidence showed that a foot brake and a fender would have rendered the machine used by appellee much safer, and it was a pertinent question for the jury to determine whether in the exercise of ordinary care such foot brake and fender should not have been attached to the machine by appellant. A verdict that it was negligent not to supply such appliances was not a requirement that an absolutely safe machine should have been provided, but that in the use of ordinary care appellant would have made the improvement. A charge embodying this theory was approved in the case of Armour v. Morgan, 151 S. W. 861, and, although a writ of error was granted in that case, it was not as to the law in regard to safeguarding the machine, but the notation of the Supreme Court is:

"Granted. We think the trial court should have submitted the issue of whether the injury was caused by the act of a fellow servant."

The petition did not allege that the machine was out of repair, but alleged that the exercise of ordinary care required of appellant to guard the rollers and attach a foot brake, so as to protect unwarned employés of tender ages from injury arising from the operation of the machine. Neither pleadings nor charges required insurance of the safety of employés, but merely the exercise of ordinary care toward children employed about machines.

It follows from what has been said that evidence of the absence of a foot brake and fender was properly admitted, and the fourth, fifth, and seventh assignments of error are overruled. It was not contended that there was a foot brake or fender on the machine, and it could not have injured appellant if the question as to a fender on the machine had been leading. The question was not leading, however.

The witness Henning testified that the unguarded rollers were a menace to any one operating the machine. He qualified as an expert in connection with such machines, and it was not error to permit him to testify that a guard could have been used without impairing the usefulness of the machine. Other testimony to the same effect was presented without objection. The eighth assignment is...