Murray v. Houston Car Wheel & Machine Co.

• Decision Date: 09 June 1920
• Docket Number: (No. 109-2954.)
• Citation: 222 S.W. 219
• Parties: MURRAY v. HOUSTON CAR WHEEL & MACHINE CO.
• Court: Texas Supreme Court

222 S.W. 219

MURRAY v. HOUSTON CAR WHEEL & MACHINE CO.

(No. 109-2954.)

Commission of Appeals of Texas, Section B.

June 9, 1920.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by W. W. Murray against the Houston Car Wheel & Machine Company. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which reversed and remanded (181 S. W. 241), and plaintiff brings error. Judgment of the Court of Civil Appeals reversed and remanded, on recommendation of the Commission of Appeals.

Presley K. Ewing, of Houston, and L. E. Blankenbecker, of New York City, for plaintiff in error.

Andrews, Streetman, Burns & Logue, of Houston, for defendant in error.

SADLER, P. J.

We will refer to the parties as they were designated in the trial court. The plaintiff recovered judgment in the district court against the Houston Car Wheel & Machine Company, from which an appeal was perfected by defendant.

The Court of Civil Appeals first affirmed the judgment, holding that the evidence amply sustained the findings of the jury as to the violation of a nondelegable duty of the defendant in failure to warn plaintiff of the danger resulting in the injury. On rehearing, Judge Walthall dissenting, it set aside its former judgment, holding that Brown was not a vice principal as to plaintiff, and that the duty to warn did not rest upon defendant as nondelegable. 181 S. W. 241.

A careful reading of the opinions upon which the judgment is based manifests that the Court of Civil Appeals finds that the evidence on the issue of Brown's vice principalship is sufficient to support the finding of the jury as to those servants employed in his department. We construe the opinion on rehearing to be that on the facts disclosed Brown was not a vice principal as to Murray solely because his power to employ and discharge him was lacking.

A very careful review of the authorities touching the question of vice principal has satisfied us that the Court of Civil Appeals has failed to give the full legal effect to the evidence, and has been too restrictive in an application of the law to the facts. We will pretermit a discussion of this question, as we think that the more important question arises on the breach of a nondelegable duty to warn the injured party of the act of defendant which rendered unsafe the place assigned for his work.

On the question of the nondelegable duty of the defendant to furnish the plaintiff a safe place to work, and whether that duty incorporated within it the further duty of the master to warn the servant before doing any act which rendered his position dangerous, we think the evidence presents the issue of a breach of that duty. It is true that Murray was using tools of the master which he selected, and was pursuing his own judgment in the manner of the performance of the work. However, the master had assigned the place where the work should be done. In the performance of that assignment it was incumbent upon Murray to be at the place and in the position occupied at the time of the injury. The master knew, or could have known, that the work was being done at this place and in the manner pursued. Murray was instructed to do this work at this place. The master knew, or could have known by the exercise of proper care, that, when the crane was in operation in the usual course of the business of the foundry, it would render unsafe the place at which Murray was working under the circumstances surrounding his position and the character of work being done.

The place and the manner of doing the work threatened no danger to Murray, so long as the crane was motionless. The place and position of Murray were rendered perilous only when the master, in the performance of the ordinary business of his foundry, used the crane in the performance of that business in its usual way. When the crane...