Potter v. Garner

• Decision Date: 13 October 1966
• Docket Number: No. 217,217
• Citation: 407 S.W.2d 537
• Parties: Charles POTTER, d/b/a Potter's Building Supplies, Appellant, v. Pearl GARNER, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 537

407 S.W.2d 537

Charles POTTER, d/b/a Potter's Building Supplies, Appellant, v. Pearl GARNER, Appellee.

No. 217.

Court of Civil Appeals of Texas.

Tyler.

Oct. 13, 1966.

Rehearing Denied Nov. 3, 1966.

Gordon Wellborn and Rex Houston, Henderson, Malcolm M. Guinn, Rusk, for appellant.

James H. Rounsaville, Norman, Rounsaville, Hassell & Spiers, Jacksonville, W. Wilson McVicker, Rusk, for appellee.

MOORE, Justice.

This is an appeal from a judgment awarding damages for personal injuries. Appellee, Pearl Garner, was an employee of appellant, Charles Potter, d/b/a Potter's Building Supplies, who was engaged in the construction business. Appellant was an employer subject to the workmen's compensation, but did not carry workmen's compensation insurance. Therefore, the defenses of contributory negligence and assumed risk are not available to appellant. Article 8306, Secs. 1 and 4, Vernon's Ann.Civ.St.

In his pleadings appellee Garner alleged, among other things, that his employer was negligent in furnishing him an electrically powered handsaw which was not equipped with a protective guard and that as a direct and proximate result of such negligence, he suffered severe injuries to his left hand.

Appellant answered with a general denial and specially denied that he furnished appellee with the power saw in question and alternatively that the saw was not defective. Pleading affirmatively, appellant alleged that the appellee was experienced in the use of a power saw and fully realized and appreciated the danger involved in the use thereof and thereafter voluntarily exposed himself to such danger and assumed risk. He further alleged that appellee's injuries resulted solely from his own negligence in the following respects: (1) failure to keep a proper lookout; (2) using the saw to split a board when he fully realized and appreciated the danger; (3) failing to act in a careful and prudent manner in using the saw; and (4) voluntarily exposing himself to a danger which he knew to exist. Pleading further in the alternative, appellant alleged that even though the power saw may have been defective in some respects, the danger was not known or discernible to him and as a result the event was a new and independent cause of the injuries, thus destorying any causal connection between the act complained of by the appellee; that appellee had the last clear chance of preventing injuries to himself and his failure to use ordinary care was the sole proximate cause of his injuries, and lastly that the occurrence in question was the result of an unavoidable accident.

The dispute turns upon the fact question of whether or not appellant actually furnished the saw and if so, whether the saw was equipped with a protective guard covering the saw blade. The injury was not disputed, nor does appellant challenge the amount of damages awarded by the jury.

The record shows that appellee was a carpenter and had been in the employment of the appellant on several occasions previous to the time of his injuries. On the occasion in question, appellant Potter was engaged in remodeling a dwelling house and had assigned the appellee the duty of laying a hardwood floor in one of the rooms in the building. In performing the work, appellee testified that his employer furnished him and the other employees with a power saw. This particular saw was known and referred to by its brand name or a 'Skill' saw, which was equipped with a protective guard over the blade. Several days before his injury, appellee testified that the blade on the 'Skill' saw had been severely damaged and had been taken to a repair shop for repairs. Approximately two days before the date of his injury, he testified that while in his employer's place of business in Jacksonville for the purpose of obtaining supplies for the construction, he advised his employer that the Skill saw had been damaged and that they were in need of another power saw on the job. According to his testimony, appellant then went into the back of his shop and brought out a power saw known as a 'Mall' saw, which was not equipped with a protective guard over the blade. He then placed the saw in a box in which he was using to carry some nails and advised him to take the same to the job and use it. It is without dispute that the 'Mall' saw in question was an electrically powered saw equipped with a radial blade and was designed to be used as a portable handsaw. According to appellee's testimony, it was not equipped with the usual type of a protective guard over the blade which would automatically cover the blade after use, nor to his knowledge had it ever been so equipped when he had used it on previous jobs. He testified that he was uncertain as to whether the 'Skill' saw had been repaired and returned to the job at the time of his injury, but if so, that he made no effort to locate same before using the Mall saw. He also testified that he knew and appreciated the danger involved in attempting to rip a narrow piece of oak flooring by using the saw without a protective guard. At the time of his injury, he testified that he was in the process of ripping the oak flooring approximately 18 inches in length by holding the same down flat on a saw-horse with his left hand and using the power saw in his right hand. After he had sawed into the board several inches, the saw either his a hard place or knot or became pinched, thus causing it to suddenly jump up out of the crevice and lurch backward across his left hand near the thumb and across his left wrist, severely injuring his left hand and wrist. According to the medical testimony, there was severe damage to the nerves, ligaments, tendons and bones in his left hand and wrist requiring a surgical operation and in order to join the severed nerves and ligaments, it became necessary to shorten the length of the bones in the forearm. This was done by surgical operation whereby the bones in the forearm were severed and a short piece of the bones were taken out which resulted in a shortening of the arm.

Appellant denied that he furnished the saw to the appellee or that he told him to us the same. According to his testimony, the saw was not owned by him and had never been owned by him, but was the property of his brother-in-law, Henry Fowler, who had worked for him on numerous jobs in the past. He testified that immediately after the injury, he went to the job and made an investigation and found the 'Mall' saw to be equipped with a protective guard over the blade; that he had seen the saw on numerous occasions on other jobs and that to his knowledge the saw had always been equipped with a protective guard. He admitted that he knew that Fowler had made a practice of using the saw on previous jobs in which Fowler had been employed by him, and also knew that the saw was being used on the job on the occasion in question.

Mr. Fowler testified that the 'Mall' saw was owned by him and that he had used it on numerous other jobs where he had worked for the appellant. He and the other witness maintained, however, that the saw had always been equipped with a protective guard over the blade.

The case was tried before a jury and in response to the Special Issues as numbered in the court's charge, the jury made the following findings: (1) that the Mall electric saw used by Pearl Garner at the time and on the occasion in question did not have a protective guard; (2) that appellant, at the time and on the occasion in question knew, or in the exercise of ordinary care should have known, that the Mall electric saw did not have a protective guard; (2a) that appellant permitted the Mall electric saw to be used by appellee at the time and on the occasion in question; (3) that such permitting was negligence; (4) that such negligence was a...