Pettithory v. Clarke & Courts

• Decision Date: 24 June 1911
• Citation: 139 S.W. 989
• Parties: PETTITHORY v. CLARKE & COURTS.
• Court: Texas Court of Appeals

139 S.W. 989

PETTITHORY v. CLARKE & COURTS.

Court of Civil Appeals of Texas. Galveston.

June 24, 1911.

Rehearing Denied October 5, 1911.

Error from District Court, Galveston County; Clay S. Briggs, Judge.

Action by E. Pettithory, Jr., against Clarke & Courts. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Marsene Johnson and Roy Johnson, for plaintiff in error. Mart H. Royston, for defendants in error.

REESE, J.

In this case E. Pettithory, Jr., sued Clarke & Courts to recover damages for personal injuries received by him while engaged in the operation of a paper-cutting machine, as an employé of defendants. A trial, with the assistance of a jury, resulted in a verdict and judgment for defendants, from which plaintiff appeals by writ of error.

It was alleged in the petition that while appellant was engaged in operating the paper-cutting machine his hand got caught between the top of the frame of the machine and the knife, which was a part of the machine, inflicting upon him severe and permanent injuries. It was charged that the accident was proximately caused by the defective condition of the machine in several particulars, all due to the negligence of the appellees, that appellant had complained to the foreman, or man in charge, and had been afterwards assured that the defect had been remedied, whereupon he continued at work with the result stated. The charge in the petition was that the machine was defective in that it was "old, worn, and defective, in its brake, clutch, and set screws, and was entirely unfit for the purposes for which it was being used." Defendants answered by general denial and specially pleaded contributory negligence on the part of plaintiff and assumed risk. Specifically stating the several grounds of contributory negligence, the answer charges plaintiff: (1) With having failed to attach or hang, upon the lever or handle by which the machine was operated, a leaden weight furnished for that purpose; (2) that he negligently placed his hands upon or over the knife bar of the machine; (3) that he failed to start the machine on its downward course, and to properly lock and secure the knife bar on its downward course before he placed his hands over or upon the knife bar; (4) that he negligently placed his hands upon the knife bar while he was standing in front of the machine, instead of moving to the left side of the machine and adjusting the knife and screws from the back; (5) that he placed his hand upon the knife bar while it was upon its upward course, which was a more dangerous way and increased the chance of injury to himself. The cause was submitted to the jury in a charge upon all the issues raised by the pleadings and evidence, after which several special charges were given at the request of appellees on the issue of contributory negligence, and also charges on the issue of assumed risk.

By the first assignment or error appellant complains of the action of the trial court in giving, at the request of appellees, special charges 2, 3, 8, 12, 13, 14, and 16, on the ground that in each of these special charges the jury was instructed on the issue of contributory negligence, and that the giving of all of these charges was reasonably calculated to, and did, give undue prominence to appellees' theory as to this defense, to his prejudice.

An examination of the record discloses that with the exception of charge No. 3 these special charges were but elaborations, in different phraseology, of the court's charge on the issue of contributory negligence; charges Nos. 8 and 16 also relating to the defense of assumed risk.

Charge No. 3 specially applied the law of contributory negligence to the facts pleaded by appellees as to that issue. This had probably not been done by the general charge of the court so fully and specifically as was done by the special charge, and we think appellees had the right to have this special charge given. M., K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058.

But this special charge, together with the general charge of the court, was, we think, sufficient to give the jury a clear and comprehensive idea of the law as applicable to these issues. The continued reiteration in these special charges of the general statement as to the law of contributory negligence, already sufficiently covered by the general charge of the court, was calculated to, and very probably did, unduly emphasize these issues. The persistent way in which the principles of law as to contributory negligence and assumed risk were thus repeatedly thrust upon the jury in special charges read to them after the court's general charge, which we assume was done, in accordance with the universal practice, was almost necessarily prejudicial to appellant. There is a clear line of distinction between special charges...