Poindexter v. Receivers of Kirby Lumber Co.

• Court: Texas Supreme Court
• Writing for the Court: Williams
• Citation: Poindexter v. Receivers of Kirby Lumber Co., 107 S.W. 42 (Tex. 1908)
• Decision Date: 05 February 1908
• Parties: POINDEXTER v. RECEIVERS OF KIRBY LUMBER CO.

107 S.W. 42

POINDEXTER v. RECEIVERS OF KIRBY LUMBER CO.

Supreme Court of Texas.

February 5, 1908.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Tom Poindexter against receivers of the Kirby Lumber Company. From a judgment for plaintiff, defendants appealed to the Court of Civil Appeals, where the judgment was reversed, and judgment was rendered for defendants (103 S. W. 439), and plaintiff brings error. Reversed, and judgment of district court for plaintiff affirmed.

W. D. Gordon, C. L. Gordon, and W. W. Blake, for plaintiff in error. C. R. Wharton and Baker, Botts, Parker & Garwood, for defendants in error.

WILLIAMS, J.

Plaintiff in error was feeding an edger in the mill of defendants in error when a leather belt used in propelling the machinery broke and a rivet flew from it, entering and destroying one of plaintiff's eyes. In this action to recover damages he alleged negligence on the part of his employers, the receivers, in two particulars: (1) In using an old and defective belt; (2) in using a defective pulley over which the belt worked. Both grounds of recovery were submitted by the trial court to the jury, and a general verdict in his favor was rendered. On appeal from the resulting judgment the Court of Civil Appeals reversed it, and rendered judgment in favor of defendants, on the ground that, before he was hurt, plaintiff knew of this condition of the belt and of any danger attending its use, and assumed the risk thereof by continuing in the service. In granting this writ of error we were of the opinion, to which we still hold, that this was not a sufficient reason for denying plaintiff a recovery upon the other ground set up; that is, the defective and dangerous condition of the pulley. A brief statement of the facts will help to an understanding of the relation of the two questions to each other.

The belt, passing through an opening in the second floor of the building, worked around two pulleys, one located in the upper room where plaintiff worked and a larger wooden one in the room underneath. The larger pulley by use had been worn into an irregular or oblong shape, so that in its revolutions it jerked the belt by alternately slackening and tightening it. The evidence tended strongly to show that this jerking caused the breaking of the belt. The evidence also tended to show that plaintiff was justifiably ignorant of this condition of the pulley and of the consequent straining of the belt, if, indeed, it would have justified any other conclusion. As to the condition of the particular belt, through the tearing of which plaintiff was hurt, the evidence is quite indefinite. The foreman, plaintiff's superior, who was used as a witness by plaintiff, stated that it was practically new and in good and sound condition. Plaintiff himself testified that it looked like it was an old one, and explained that, by this, he meant that it appeared to have been used, but how much he did not know. Neither he nor any one else stated any defect, unless the presence of copper rivets in it be one. That such rivets had been inserted was shown by both witnesses, and both explained this by the statement that the two layers of leather of which the belt was made had originally been glued together and had slightly parted at one place, and the rivets were driven through and clinched so as to hold them together, and prevent further separation. This was a usual method of remedying such conditions in belts, and there is no evidence that it was improper or negligent. The plaintiff assisted in putting this belt in use, and fully admitted his knowledge of the presence of the rivets when he proceeded with his work. It further appears that belts often broke, and that of this plaintiff was fully cognizant. On the day of and preceding the accident another belt, a rubber one, had several times parted in plaintiff's presence. The first time the lacings gave way, and plaintiff relaced, and continued his work with it in use. When it next broke, the foreman mended it with rivets and metal hooks, to which plaintiff objected, and was about to quit when the belt broke again, and the leather one in use when plaintiff was hurt was selected by the foreman. The plaintiff testified that his objection to the belt previously used was to the metal hooks, and that he raised no objection to the last belt with the rivets, because he thought they were safer than the hooks.

For several reasons, we think the Court of Civil Appeals correctly held that there was no right of recovery as for a defective belt. In the first place, the evidence stated does not justify the conclusion that this belt was defective....