Richardson v. Missouri-K.-T. R. Co. of Texas

• Decision Date: 24 October 1947
• Docket Number: No. 14870.,14870.
• Citation: 205 S.W.2d 819
• Parties: RICHARDSON v. MISSOURI-K.-T. R. CO. OF TEXAS.
• Court: Texas Court of Appeals

205 S.W.2d 819

RICHARDSON v. MISSOURI-K.-T. R. CO. OF TEXAS.

No. 14870.

Court of Civil Appeals of Texas. Fort Worth.

October 24, 1947.

Rehearing Denied November 21, 1947.

Appeal from District Court, Grayson County; W. C. Dowdy, Judge.

Suit by S. A. Richardson against Missouri-Kansas-Texas Railroad Company of Texas under the Federal Employers' Liability Act to recover for injuries sustained by plaintiff while operating a machine in a planing mill of defendant's machine shop. From a judgment, plaintiff appeals.

Affirmed.

Webb, Elliott & Rogers, of Sherman, for appellant.

G. H. Penland and M. E. Clinton, both of Dallas, Freeman, Woolfe & Keith, of Sherman, Gullett & Gullett, of Denison, and Touchstone, Wight, Gormley & Touchstone and O. O. Touchstone, all of Dallas, for appellee.

HALL, Justice.

This is a well developed case, the record consisting of a 756-page statement of facts, a transcript of 148 pages, plus a motion picture film and other photographs. The suit was filed by appellant, S. A. Richardson, in the District Court of Grayson County, Texas for personal injury damages under the Federal Employers' Liability Act, 45 U. S.C.A., § 51, against appellee, Missouri-Kansas-Texas Railroad Company of Texas. Appellant Richardson, while operating a shaper machine in a planing mill of appellee's machine shop in Denison, Texas, received an injury which cut his three middle fingers off of his right hand and sustained permanent injury to his right thumb. The trial was to a jury, which found appellant was damaged in the sum of $6,000 but because of his contributory negligence he was only entitled to recover $3,000, and he, being dissatisfied with such finding, perfects this appeal, predicated upon six points of error, to-wit: The trial court erred in allowing the introduction of appellee's exhibit No. 19, the same being a technicolor motion picture, for the reasons,—(1) the same was self-serving; (2) the same was hearsay; (3) because no proper predicate for the introduction thereof was laid; (4) because the picture was repetitious; (5) because the same was irrelevant, highly prejudicial, and inflammatory.

His sixth point was leveled at the trial court's refusal to submit to the jury the definition of circumstantial evidence.

The facts show that appellant Richardson had been working for the appellee in its planing mills as a machine carpenter since 1922. His job at the time of the injury included the work on all power-driven wood-work machines in the mill, including the shaper machine, the one on which he was injured. He testified that this machine was the fastest running machine in the mill, that it was composed of an iron table top approximately 3½ feet above the floor and approximately 3½ feet wide and 6 feet long. On top of the table are two heads, located approximately 2 feet from each end of the same. The shaper head is approximately 5 inches across, into which various sizes of knives are fitted; that it makes around 7,000 revolutions per minute. On top of the table and running diagonally across the same is an adjustable wooden gauge, which extends on each side of the cutting head, is approximately 2½ inches thick and 4 inches wide. This gauge is adjusted so that when lumber is held firmly against the table and wooden gauge while being pushed past the revolving shaper head, the desired groove or cut is made in the timber. The machine would do better work when the lumber was held either mechanically or by hand down against the table and pushed over against the gauge as it passed the cutting head. The machine was also equipped with a lumber block or guard, which was to protect the worker from the saws. The shaper head revolved in a clockwise direction with the clock facing up, so that when the lumber is pushed past it, it tends to push the lumber back toward the operator. He further testified that the operator in order to cut small pieces of lumber would have to use his right hand on the front of the piece of timber to be worked and his left hand behind it, thereby holding the lumber down on the table against the gauge and pushing it past the cutting gauge and that the guard on the machine was made for large pieces of timber. At the instance in which plaintiff received his injury, he had picked up a piece of lumber which was 13/16th of an inch thick and 1¾ inches or 2 inches wide and practically 2 feet long. He turned on the machine, placed his right hand at the front of the lumber and his left hand about 6 inches from the back of it and after his right hand had passed the shaper head, the machine made an awful noise and popped and when it did it caught the piece of material in it, hand and all. The lumber broke and jerked his hand into the head. The piece of lumber on which appellant was working at the time of the injury was never found. He was in the process of testing the machine with such small piece of lumber.

The appellee, among other things, answered by denying that the shaper machine was in any manner defective and plead that the accident in question was caused solely by the failure of appellant Richardson to use ordinary case for his own safety, and by his own negligence and carelessness caused the accident in question, and that he was negligent in the following respects:

In not using the guard; in not removing the half round knives and replacing them with beveled knives; in experimenting with the half round knives; in experimenting with the scrap of lumber not suitable in size; in disregarding the written standard rules of the company as to using guards; in not using fully the services of his helper; in the manner in which he, the said plaintiff Richardson, held the board in his hands; in not using the two boards available for his use which were about 15 feet in length, and other grounds which we will not mention at this time, with the exception that in appellee's trial amendment it added these additional specifications in which the appellant failed to use ordinary care:

"In not removing the half round knives and replacing them with other knives; in failing to adjust the shaper machine adjustments before undertaking the work in which he was engaged at the time of the accident; in putting his right hand in front of the cutting head, in that he shoved the board he was using further than was necessary past the cutting head."

The jury found, among other things, the following:

The failure of the appellee to furnish a tension shoe was not negligence.

The appellee was negligent in failing to furnish tension springs, which was a proximate cause of plaintiff's injuries.

That the cutting head of the shaper machine did not shimmy and vibrate.

That the appellee's negligence in furnishing the plaintiff a machine without proper protecting guards proximately caused appellant's injuries.

The appellee did not fail to properly inspect the cutting head of said machine.

The appellee did not fail to repair the machine to prevent it from shimmying and vibrating.

That the injury was not occasioned by an unavoidable accident.

That the appellant was not negligent in failing to use a guard on the machine.

That appellant was not negligent in failing to remove the half round knives of said machine.

That the appellant was not experimenting with said half round knives or a scrap of lumber not suitable in size and type for the machine.

That the appellant did not fail to use the right kind of knives for the operation of the machine.

That appellant was not negligent in disregarding a company rule requiring the operator to use guards on said machine.

That the appellant was not negligent in failing to adjust the shaper machine before undertaking the work.

That the appellant did not shove the board he was using further than necessary past the cutting head.

That appellant's negligence in the manner in which he held the board in his hands, the way in which he used the shaper machine and in putting his right hand in front of the cutting head was all found by the jury to be a proximate cause of his injuries but not the sole proximate cause of the same.

It is the contention of appellant that the moving picture was merely self-serving, in that it attempted to reconstruct the scene of the injury of appellant over nine months after the date of the injury and that the actor in the picture, to-wit: Leo Burleson, foreman of the shop, was not present at the time of the injury, which makes his actions in the picture hearsay, and that such hearsay picture made an indelible impression upon the jury to such an extent that the jury took it as a scene of the injury rather than an experiment of appellee, and that by the use of such skillfully technical picture, the appellee took from the appellant the sum of $3,000.

The rules and regulations surrounding the introduction of a motion picture are the same that surround the introduction of a still photograph. 32 C.J.S., Evidence, § 709. The same authority holds that a photograph is admissible as secondary evidence of objects which cannot for one reason or another be produced in court, that they are admissible as demonstrative evidence.

The appellant complains because he was not present or was not notified of the taking of the picture. This contention was settled as far back as 1904 in the case of Hawkins v. Missouri, Kansas & Texas Railroad Co., 36 Tex.Civ.App. 633, 83 S.W. 52. Before a photograph or moving picture may be admitted into evidence, it must be shown by extrinsic evidence to be a true and faithful representation of the place or object it purports to represent as it existed at the time pertinent to the injury. It is not necessary, however, that the situation or condition should be precisely the same, but it is sufficient if the situation is substantially unchanged. Bilbrey v. Gentle, Tex.Civ.App., 107 S.W.2d 597, writ refused. The fact that the photograph is incorrect in some particulars does not render it inadmissible but affects its weight. Blake v. Harding, 54...