San Antonio Brewing Ass'n v. Wolfshohl

• Citation: 155 S.W. 644
• Parties: SAN ANTONIO BREWING ASS'N v. WOLFSHOHL.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 05 March 1913
• Court: Texas Court of Appeals

155 S.W. 644

SAN ANTONIO BREWING ASS'N v. WOLFSHOHL.^†

Court of Civil Appeals of Texas. San Antonio.

March 5, 1913.

Rehearing Denied April 2, 1913.

Appeal from District Court, Bexar County; T. T. Vander Hoeven, Special Judge.

Action by Henry Wolfshohl against the San Antonio Brewing Association. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Newton & Ward and Terrell & Terrell, all of San Antonio, for appellant. Webb & Goeth and W. H. Kennon, all of San Antonio, for appellee.

FLY, C. J.

This is a suit for damages arising from personal injuries, alleged by appellee to have been inflicted through the negligence of appellant. Appellant answered by general and special exceptions, general denial, and pleas of contributory negligence and assumed risk. The cause was tried by jury and resulted in a verdict and judgment for appellee for the sum of $7,500.

The evidence showed that appellee had for years, at intervals of time, been operating an electric machine which was propelled by a dynamo. It was used for moving cars so as to load or unload them. On the day appellee was injured, he was ordered to get the machine ready to move a car. The machine had what are called two spools, the smaller about four or five feet from the floor, the larger one several feet higher, and a rope worked on those spools. A man was required to stand near the smaller spool and with one hand guide the rope which ran therefrom up to and over the larger spool. This was done to keep the rope straight on the spools. The machine was started by manipulating a switch which turned the electricity on and off. The switch was located in a corner, near the door, about four or five feet from where the operator of the machine stood while it was in use. It could not be reached from that position. On the day he was injured, appellee was engaged in guiding the rope which he would grasp and hold until it was too high to hold, then he would release it and grasp it again above the lower spool. While watching for signals, he dropped his hand below the lower spool and grasped the rope, and his hand was caught between the rope and the lower spool, and he was whirled around the spool causing serious and permanent injuries.

The first assignment of error assails the action of the court in permitting appellee to testify, in regard to the machine, that it should have had a cover over the spool and a lever to guide the rope. Appellee admitted that he had never seen a machine like the one belonging to appellant before, and never thought of a guard for the drum, or a lever for the rope, until after the accident. Appellee was not an expert. We think the testimony should have been excluded, and the trial judge must have afterwards so concluded, as he refused to submit the issues as to the spool being covered and a lever being furnished. It is contended that the refusal to submit those matters withdrew them from the jury. The evidence was not withdrawn; and, while the issues connected with it were not submitted, the jury may have considered the testimony in arriving at a verdict. It is true that, when the opinion of appellee as to where the switch should have been located was first given and objected to by appellant, counsel for appellee said, "You may strike that answer out on objection," but it was not stricken out. In the statement of facts appellee stated: "It would have been just as easy to have located the switch closer to the machine; it could have been located right in front of where you stand on the floor, about a foot from your face; if it had been there, I could have reached it and stopped the machine." And in the bill of exceptions it appears that, after it was said the evidence as to the switch might be stricken out, appellee again stated: "And then the switch ought to have been closer to it to reach it." The evidence was merely an opinion of the appellee on a matter about which the jury was just as capable of arriving at a just conclusion as he was.

Whether it was negligent for appellant to not cover the spool, to not furnish a lever for the rope, and to not have the switch closer to the machine were questions for the jury, and yet appellee was allowed to decide them for the jury. As said by this court in Railway v. Sweeney, 6 Tex. Civ. App. 173, 24 S. W. 947: "It was the substitution of the opinion of a witness for the opinion of the jury."

The facts in this case were placed before the jury, and they were of such a nature that the jurors could form opinions in reference to them and draw inferences as well as any witness, even though he had been an expert, and opinions were not properly received. Sweeney Case and authorities therein cited.

The evidence of appellee shows that he had often operated the machine and knew the location of the switch; in fact, he had used it a short while before he was hurt. He knew the distance of the switch from the machine, and knew that he could not reach it from his station near the spools. He must have known, as well as the master, that he might get his hand entangled in the rope, and that he would desire to stop the machine, Under these circumstances, he must have assumed the risks arising, if there were any, from the switch being near the door. The location of the switch, the situation of the machine, its operation, all were known to appellee; and, if the master could possibly anticipate that its servants would place their hands in such position as to get their fingers under the rope on the lower spool and would need the switch in reach so as to stop the machine, appellee must have anticipated it also. The situation, with all of its possibilities, was as apparent to one man of ordinary intelligence as it would be to another. There was nothing intricate or hidden about the switch, machine, rope, and other objects in the room. Appellee was thoroughly acquainted with everything in the room.

Even if it could, with any reason, be held that appellee did not assume the risk attendant upon his operation of the machine, the evidence undoubtedly shows contributory negligence upon his part. It was his duty to operate the rope by taking hold of it above the lower spool, and in that position it would be a physical impossibility for his fingers to get caught under it. He swore his hand was above the rope, but that statement is utterly unreasonable, in view of the impossibility of a rope uncoiling from the spool, catching the fingers and dragging them on the spool, and clasping them so tight that...