Miller v. Itasca Cotton Seed Oil Co.

• Decision Date: 22 May 1897
• Citation: 41 S.W. 366
• Parties: MILLER v. ITASCA COTTON SEED OIL CO.
• Court: Texas Court of Appeals

Page 366

41 S.W. 366

MILLER v. ITASCA COTTON SEED OIL CO.

Court of Civil Appeals of Texas.

May 22, 1897.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by G. N. Miller against the Itasca Cotton Seed Oil Company. Judgment for defendant, and plaintiff appeals. Reversed.

Bounds & Bounds and A. G. Walker, for appellant.

FINLEY, J.

This suit was instituted by appellant, Miller, against the defendant company, for damages on account of personal injuries received by himself, and alleged to have resulted from the negligence of the defendant company. The defendant filed general and special exceptions to the petition of plaintiff, which, on presentation and hearing, were sustained by the court; and, plaintiff declining to amend, the cause was dismissed. Plaintiff excepted, and has appealed to this court.

Appellant complains of the action of the court in sustaining the general demurrer to the petition. The case has been briefed in this court by appellant alone, no brief having been filed by appellee. From the statements in appellant's brief (which it is our duty to accept as correct, the same not being controverted by appellee), the petition alleged facts showing that the plaintiff had been injured in his person through negligence of the defendant, his employer, without fault on plaintiff's part; that the machinery furnished plaintiff by defendant with which to perform his labors was defective, and the defectiveness of such machinery was the proximate cause of the injuries; and that the defects were known to the defendant, and were unknown, and not apparent, to plaintiff. These allegations constituted a cause of action, and it would be error to sustain a general demurrer to a petition containing the allegation of such facts.

The special exception presented to that part of the petition which alleged defectiveness in the auger was properly sustained, for the reason that the allegations show that such alleged defect was not the proximate cause of the injury.

The special exception presented to that part of the petition which alleged defectiveness in the fan was also properly sustained, for the reason that the petition showed that this defectiveness was not the proximate cause of the injuries.

It was error, however, to sustain the exception to the allegation of negligence in the construction of the line shafting, leaving it in an exposed and dangerous condition, when it should have been inclosed for the protection of the employés. The...