Pruitt v. Frost-Johnson Lumber Co. of Texas

• Decision Date: 20 November 1913
• Citation: 161 S.W. 421
• Parties: PRUITT v. FROST-JOHNSON LUMBER CO. OF TEXAS.
• Court: Texas Court of Appeals

161 S.W. 421

PRUITT v. FROST-JOHNSON LUMBER CO. OF TEXAS.

Court of Civil Appeals of Texas. Texarkana.

November 20, 1913.

Appeal from District Court, Nacogdoches County; Jno. I. Perkins, Judge.

Action by J. A. Pruitt against Frost-Johnson Lumber Company of Texas. Judgment for defendant, and plaintiff appeals. Affirmed.

King & King, of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, for appellee.

WILLSON, C. J.

Lee Johnson had charge of the operation of appellee's planing mill near Nacogdoches. Appellant was Johnson's "helper." In his petition appellant alleged it was his duty, as such helper, to assist Johnson in the work of keeping the several planing machines adjusted and repaired. January 24, 1912, while appellant was attempting with a wrench, to adjust one of said machines, as a result of a failure of the wrench to hold on a jam nut it became necessary to turn, appellant's right hand and a portion of his right forearm were thrown against knives revolving in the machine, and he was injured. In his petition he alleged as negligence on the part of appellee, which entitled him to the damages he sought to recover, (1) that the wrench "was old and worn and out of adjustment by wear and tear, so that it would not fit tightly around said nut, the mouth of said wrench being so worn as to become too wide to hold closely upon said nut when placed thereupon, and so worn that when the plaintiff attempted to use the same upon the nut the wrench refused to catch or hold the nut and slipped from around the same, which said defect in said wrench was unknown to him, but was known to defendant or its foreman (said Johnson), or could have been known to them by the exercise of proper care in the examination and inspection of said wrench, which said duty the plaintiff charges the defendant had negligently refused to perform"; and (2) that the jam nut had "become corroded, worn, and covered with resin, so as to make it difficult for the wrench furnished to hold upon said nut, and said condition permitted the wrench in its worn and defective state, when placed upon said nut for the purpose of moving the same, thereby to slip from off said nut, thereby throwing his hand into said machine as aforesaid, which said fact was unknown to this plaintiff, but which said fact was known to the defendant, or could have been known in the exercise of the duty of examination and inspection imposed upon it by law, which said examination and inspection this plaintiff charges the defendant carelessly and negligently failed to perform."

The court below, after hearing the testimony, told the jury same did not warrant a verdict in appellant's favor, and instructed them to find for appellee. The jury so found. The appeal is from a judgment in accordance with their finding. The complaint here is that the court erred in peremptorily instructing the jury as stated.

At the time he was injured appellant was 46 years old. He had worked in planing mills during more than 20 years of his life, and during the 4 or 5 years immediately preceding the time when he was injured had worked in appellee's mill as "helper" to the foreman in charge thereof. It was a part of appellant's duty to adjust the machines, and if he found a jam nut in a bad condition to put in a new one, and if he found a wrench to be in a bad condition to either have it repaired or make a report as to its condition to the foreman. He had frequently adjusted the machine in question. The jam nut was defective in that, as appellant testified, it was "worn on the end." Appellant knew it was so worn before he attempted to turn it on the occasion when he...