Planters' Oil Co. v. Keebler

• Decision Date: 04 July 1914
• Docket Number: (No. 8006.)
• Parties: PLANTERS' OIL CO. v. KEEBLER.
• Court: Texas Court of Appeals

170 S.W. 120

PLANTERS' OIL CO. v. KEEBLER.

(No. 8006.)

Court of Civil Appeals of Texas. Ft. Worth.

July 4, 1914.

Rehearing Denied October 17, 1914.

Appeal from District Court, Parker County; F. O. McKinzie, Judge.

Action by Homer Keebler against the Planters' Oil Company. From the judgment for plaintiff, defendant appeals. Affirmed.

Stennis & Grindstaff, of Weatherford, and James C. Wilson, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellant. Hood & Shadle, of Weatherford, for appellee.

DUNKLIN, J.

Homer Keebler instituted this suit against the Planters' Oil Company to recover damages for personal injuries, and from a judgment in favor of the plaintiff, the defendant has appealed.

Appellee admits the correctness of the following statement of the nature of the suit, as contained in appellant's brief:

"Appellee, Homer Keebler, while engaged in his duties as `night oiler' in the seedhouse of appellant's oil mill at Weatherford, Tex., on the morning of January 29, 1913, and while attempting to replace a belt on a line shaft, was injured. He instituted this suit against the appellant, alleging the existence of a set screw or bolt with a square head and square edges in the coupling of the line shaft in appellant's seedhouse; that the screw extended or projected from the surface of the line shaft and coupling 1 1/8 inches, and was extremely dangerous which danger was alleged to be unknown to appellee; and averred negligence in so allowing the set screw to extend and project from the line shaft and coupling in question. It was further averred that plaintiff was unacquainted with the presence of the set screw.

"The manner in which appellee was injured, as stated in his petition, was as follows: `That while, as aforesaid, belting and attempting to belt and put on said belt and to start same on its pulley, as aforesaid, in the usual and customary way and manner, and using the only means provided at that time by defendant company, and using the care and caution of an ordinarily prudent man, plaintiff's clothing was caught in front by said set screw or bolt, and he was violently and with great force jerked off of said runboard and with terrific force pulled over against said line shaft, pulleys' belts, and machinery and other material, hurled aloft, and violently thrown down and cast on the floor, rendering him unconscious and almost killing him, he remaining unconscious for quite a while.'

"Appellant was also alleged to be negligent in having a narrow runboard next to the line shaft, on which an employé replacing belts on the pulleys on the line shaft was required to stand; in keeping the runboard unclean, oily, and slippery; in not having a guard or banister between the shaft and runboard; and in not having sufficient lights. The only ground of negligence submitted to the jury as a basis of recovery, however, was that with reference to the set screw.

"Appellant replied with specific denials of appellee's allegations of negligence, etc., and pleas of contributory negligence and assumed risk.

"The place where the injury occurred was in appellant's seedhouse, which was approximately 120 by 400 feet in size. The line shaft in question was elevated something like 12 or 13 feet from the floor, and the runboard along same being some 2 or 3 feet lower. The runboard was 7½ or 8 inches wide."

The evidence shows that on the night in controversy the belt connecting the conveyor with the line shaft got off the pulley of the line shaft, and in order to replace it plaintiff ascended to the running board, and while standing on the running board and attempting to replace the belt upon said pulley, he came in contact with the shaft, and was thrown to the floor below, and thereby sustained the injuries for which he recovered damages.

The line shaft runs practically east and west, and the running board was some 22 inches to the south of it. The line shaft was composed of at least two sections, the ends of which were fastened through the means of a coupler, the middle of which coupler was in the form of a disc. From each side of the disc were extensions into which the ends of the line shaft were inserted and held in place by set screws running through the coupler into the line shaft. The pulley upon which plaintiff was attempting to place the belt at the time of his injury was near one edge of the coupler. The head of the set screw at that edge of the coupler was not sunken to a level of the surrounding surface, but extended above the surface of the coupler to a height estimated by different witnesses from five-eighths of an inch to one and one-eighth inches. The head of the set screw was square, and the distance across it was about five-eighths of an inch. Plaintiff testified that he came in contact with the line shaft while he was "surging to put the belt on," but further testified that he could not tell how he happened to come in contact with it, except that he was positive that he did not fall against it, and that he was standing on the running board at the time he was attempting to place the belt on the pulley. There was other evidence, however, which we deem it unnecessary to set out, which was sufficient to sustain a finding by the jury that, while plaintiff was attempting to place the belt on the pulley, his clothing was caught by the set screw in the coupler referred to above, and he was thereby hurled aloft and thrown to the floor below. There was also evidence sufficient to sustain a finding by the jury that the defendant was guilty of negligence in failing to so lower the head of the set screw as to render it impossible to catch in the clothing of operatives engaged as the plaintiff was engaged.

By its first assignment appellant insists that the court erred in refusing to give its requested special instruction to the jury to render a verdict in favor of the defendant. By the first proposition submitted under this assignment the contention is made that it clearly appears that:

"Appellee's becoming overbalanced and falling into the line shaft or jerking himself over on the line shaft in an effort to replace the belt was a proximate and efficient cause of his injury (for which appellant would not be liable), and not the projection or protrusion of the set screw."

Many authorities are cited to sustain the proposition so advanced, including Tex. & Pac. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, which is the leading authority in this state upon the law of proximate cause; also Dayton Lbr. Co. v. Hastings, 152 S. W. 863; So. Kansas Ry. Co. v. Emmett, 139 S. W. 44; C., R. I. & M. Ry. Co. v. Harton, 36 Tex. Civ. App. 475, 81 S. W. 1236; Yecker v. S. A. T. Co., 33 Tex. Civ. App. 239, 76 S. W. 780; A., T. & S. F. Ry. Co. v. Seeger, 44 Tex. Civ. App. 534, 98 S. W. 892; B. E. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; I. & G. N. Ry. Co. v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661; and many decisions from other states. We believe the following is a substantially correct statement of the rule announced in Tex. & Pac. Ry. Co. v. Bigham, supra. Even though there have been intervening agencies or causes between the primary cause and an injury, yet the primary cause, when amounting to negligence other than a wanton wrong, will be considered the proximate cause of the injury: First, when it appears that the injury was the natural and probable result of such primary cause; and, second, when it can be said that a person of ordinary prudence, in the light of the attending circumstances, ought reasonably to have foreseen an injury of like character as such a consequence. In that case it was held that the negligence of the railway company in maintaining defective fastenings to a gate opening into its stock pens was not the proximate cause of an injury to a shipper who placed his cattle in the pens and was run over by the cattle when they escaped through the gate by reason of such defective fastenings, because such an injury could not reasonably have been anticipated as a result of such negligence.

The case of Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, was a suit by Mrs. Seale for damages for the death of her minor daughter resulting from her clothing catching fire while she, together with her mother, was attempting to extinguish burning grass upon the land of plaintiff near her dwelling and fence. It was alleged that through the negligence of the railway company fire had originated upon its right of way and from there had spread to plaintiff's land adjoining the same. In that case our Supreme Court held that the railway company should have anticipated that fire so started would endanger the plaintiff's property, but that it could not reasonably have anticipated that any one in attempting, even in a careful manner, to extinguish the fire after it had spread upon adjoining property would lose his or her life by clothing catching on fire, and for that reason held that the negligence of the railway company in starting the fire was not the proximate cause of the death of plaintiff's child.

Dayton Lbr. Co. v. Hastings, supra, was a suit in which damages were sought for an injury sustained by Hastings as a result of his hand coming in contact with one of the saws of the lumber company's mill. A "slasher chain" had broken, or become unhooked, and had wrapped around one of the sprocket wheels. In pulling at the chain to unwind it from the sprocket, the chain broke, and caused Hastings' arm to fly back into the saws. The basis of liability was a charge of negligence in maintaining the chain in such a defective condition as to cause it to break...