Robert E. McKee, General Contractors, Inc. v. Patterson, 3116

• Decision Date: 17 December 1953
• Docket Number: No. 3116,3116
• Citation: 263 S.W.2d 326
• Parties: ROBERT E. McKEE, GENERAL CONTRACTOR, Inc. v. PATTERSON.
• Court: Texas Court of Appeals

Page 326

263 S.W.2d 326

ROBERT E. McKEE, GENERAL CONTRACTOR, Inc. v. PATTERSON.

No. 3116.

Court of Civil Appeals of Texas, Waco.

Dec. 17, 1953.

Rehearing Denied Jan. 7, 1954.

Cecil, Keith & Mehaffy, Beaumont, for appellant.

Orgain, Bell & Tucker, Beaumont, for appellee.

HALE, Justice.

This is an appeal from a judgment in favor of appellee for damages on account of personal injuries sustained by him when a ladder upon which he was working slipped and caused him to fall. The judgment was based upon jury findings that the injuries complained of were proximately caused by certain specific acts of negligence on the part of appellant in failing to exercise due care to furnish to appellee a reasonably safe place in which to perform the work upon which he was engaged at the time he was injured. Appellant predicates its appeal upon two points of error, viz.: (1) 'The trial court erred in submitting this case to the jury when no evidence was introduced by the plaintiff showing any negligence on the part of Robert E. McKee, General Contractor, Inc.'; and (2) 'The trial court erred in submitting the case to the jury when the undisputed evidence showed, as a matter of law, that David B. Patterson was guilty of contributory negligence.'

The evidence shows that appellant entered into a contract with the Port Arthur Independent School District for the construction of a High School building and gymnasium. As the general contractor, it arranged with various persons as subcontractors to do certain parts of the work necessary to the performance of its contract with the School District. Horn Brothers Company and J. A. Honeycutt were two of the subcontractors on the job. Horn Brothers were to furnish and install certain folding partitions and bleachers in the gymnasium and Honeycutt was to finish the floor in the gymnasium. A. A. Crawford was appellant's general superintendent and as such he coordinated all of the work being done on the project and called upon each of the subcontractors to perform the work to be performed by each at such time or times as he saw fit. Bill Summers, as foreman for Horn Brothers, employed appellee as a carpenter to assist in doing the work which Horn Brothers had agreed as a subcontractor to do. Before the overhead carpenter work incident to the proper installation of the folding partitions and bleachers in the gymnasium had been completed, Crawford called upon Honeycutt to finish, sand and polish the floor in the gymnasium and this was done. Thereafter, in order to continue the work upon which he had been previously engaged, appellee ascended a ladder resting upon the polished floor, the ladder slipped and appellee fell, thereby sustaining the injuries of which he complains.

In the case of Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431, 20 A.L.R.2d 853, the Supreme Court of Texas said: 'A general contractor on a construction job, who is in control of the premises, is burdened with the duty to use due care to provide a safe place for workmen on the premises, including the employees of other contractors.' Such being the law in this State, if there was any evidence adduced upon the trial of this case which, when considered in the light most favorable to appellee, tended to show that appellant failed to exercise due care to furnish to appellee a reasonably safe place in which to perform the work upon which he was engaged at the time of his injury, then in that event the judgment appealed from should be affirmed, unless the undisputed evidence showed conclusively that appellee was guilty of contributory negligence as a matter of law. On the other hand, if there was no evidence of negligence on the part of appellant in failing to discharge the duty which it owed to appellee, or if the evidence showed conclusively that appellee was guilty of contributory negligence as a matter of law, then in either of such events the judgment appealed from should be reversed and judgment should be here rendered that appellee take nothing by reason of his suit.

There was direct evidence to the effect that a finished floor is a greater hazard to workmen who are required to work on it than a floor that is not finished. There was also testimony from several witnesses that the usual and customary practice in the construction of a building, such as the gymnasium involved in this case, was to so plan, coordinate and pursue the work on the project that the interior carpenter work, and particularly the overhead work necessitating the use of ladders, would be completed before the floors were finished and polished. The witnesses Marsh and Deckard each testified that after Honeycutt had finished and polished the floor of the gymnasium, appellant did not supply any covering for the floor to protect it in any way or to prevent a ladder from slipping on it.

Appellee testified in substance, among other things, that he had been working as a carpenter for twenty-five years and had worked on numerous construction jobs in different parts of the State of Texas; that he was familiar with the custom and general practice in construction work...