San Antonio Brewing Ass'n v. Sievert

• Decision Date: 05 January 1916
• Docket Number: (No. 5563.)
• Citation: 182 S.W. 389
• Parties: SAN ANTONIO BREWING ASS'N v. SIEVERT.
• Court: Texas Court of Appeals

182 S.W. 389

SAN ANTONIO BREWING ASS'N v. SIEVERT.

(No. 5563.)

Court of Civil Appeals of Texas. San Antonio.

January 5, 1916.

Rehearing Denied February 2, 1916.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by Julius Sievert against the San Antonio Brewing Association. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Newton & Newton and Terrell, Walthall & Terrell, all of San Antonio, for appellant. Harris & Newton and Will A. Morriss, all of San Antonio, for appellee.

FLY, C. J.

Appellee sued appellant for damages, alleging that he was its employé, and that while in performance of the duty of removing bungs from beer barrels, a barrel fell from a stack of such barrels striking and breaking his left hand. It was alleged that it was the duty of appellant to furnish appellee a safe place in which to work, but that it negligently placed appellee too near where barrels were stacked in a loose, careless, and insecure manner, and that they were stacked at too great a height and could be jarred or shaken down. Appellant denied that it had been negligent, and pleaded assumed risk, contributory negligence, and that the injury was caused by the act of a fellow servant. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $5,000.

The evidence showed that appellee was an employé of appellant; that he was ordered to a certain place in the building of appellant to remove bungs from certain barrels; that while so engaged a barrel fell and struck and disabled his left hand. No one was working near appellee. The evidence fails to show how long the stack from which the barrel fell had been stacked. The barrels were stacked by fellow servants of appellee.

It is the duty of the master to exercise ordinary care to render the place for work reasonably safe for his servants. This rule applies to this case, but there are facts in the case that tend to bring it within that rule which provides that, when the very progress of the work renders it impossible to supply a safe place in which the servant can work, the master may not be liable. In such a case the master is not relieved from the exercise of ordinary care, and, where the work itself creates danger, the master cannot absolve himself from liability for any dangers arising solely from a failure to exercise ordinary care. In other words, the servant, even while working in a dangerous place, does not assume the risk of the master's negligence. In this case appellee claims that he was not working on the stack of barrels from which the barrel fell, and the evidence does not show anything to put him on notice that there was any danger from the stacks of barrels standing near where he was working. He had never known a barrel to fall from a stack except when it was knocked down by other barrels being thrown against it, and no one, according to his testimony, was near the barrels when he was injured.

As a general rule, the servant is under no obligation either to inspect the place by which his safety may be affected, or to endeavor to discover concealed dangers, which would be disclosed by superficial observation. He can act on the assumption that his master has put him in a safe place and furnished him with safe instrumentalities with which to perform his work. The duty of inspection did not rest upon him. It was the duty of the master to inspect the premises where he had his servant employed, and ascertain whether there was danger in him working near the barrels. This rule would not apply, however, in a case where the danger arises from the work itself, and there is no evidence that the master had knowledge of the danger, or was, by the length of time the danger had existed or other circumstances, charged with a knowledge of the danger. The duty of inspection rests upon the master, but there must be evidence tending to show that an opportunity for inspection arose before the accident happened.

There is a rule that the master is not under obligation to examine into the condition of his appliances from time to time for the purpose of ascertaining whether they expose the servant to those elements which arise from the manner in which the details of the work are carried out. Labatt, Mast. & Serv. § 1066. It is true that the duty of the master to use reasonable care to furnish a safe place in which his employés can work is nondelegable, but that doctrine does not require the utter overthrow of the rule as to fellow servants and make the master liable to a servant although the place was made temporarily dangerous by the act of a fellow servant. As said by the Supreme Court of Minnesota, in the case of Fraser v. Lumber Co., 45 Minn. 235, 47 N. W. 785:

"When it is considered that, where numerous employés are all engaged in prosecuting the same general object, there is hardly one of them whose duties do not, in part at least, in some way relate to or affect the safety of the instrumentalities with which, or of the places in which, the others work, it is easy to see that the rule referred to may be, as it often has been, carried so far as to practically...