San Antonio Traction Co. v. De Rodriguez

• Decision Date: 14 October 1903
• Parties: SAN ANTONIO TRACTION CO. v. DE RODRIGUEZ.
• Court: Texas Court of Appeals

77 S.W. 420

SAN ANTONIO TRACTION CO. v. DE RODRIGUEZ.

Court of Civil Appeals of Texas.

October 14, 1903.

Appeal from District Court, Bexar County; J. S. Camp, Judge.

Action by Clara Y. De Rodriguez against the San Antonio Traction Company. From a judgment for plaintiff, defendant appeals. Reversed.

Houston Bros. and R. J. Boyle, for appellant. Robt. T. Neill, for appellee.

FLY, J.

Clara Yrizolle De Rodriguez sued appellant for damages resulting from the death of her husband, Utimio Rodriguez, and a trial by jury resulted in a verdict and judgment in favor of appellee for $3,500. It was alleged in the petition that Utimio Rodriguez was in the employ of appellant, and on September 9, 1901, was ordered, in company with five or six colaborers, to lift, carry, and place on a wagon a very heavy, thick, and long wooden beam or sill; that said beam was so heavy that 12 or 14 men would have been necessary to lift and carry it, but Rodriguez, being inexperienced, did not know the weight of the beam and the number of men necessary to move it, and, in obedience to the orders of his foreman, in conjunction with five or six men, attempted to lift and carry the beam, and in so doing received injuries that caused his death.

The petition was excepted to as presenting no cause of action, and the first and second assignments of error present as error the refusal of the trial court to sustain the exceptions. If deceased was ordered to assist in handling a beam with inadequate assistance, and was ignorant, by reason of his inexperience, of the weight of the beam and the number required to safely handle it, and appellant was charged with a knowledge of the danger of the undertaking, and the death of deceased resulted from an endeavor to perform the labor, appellant would be responsible. The court did not err in overruling the exceptions. Railway v. Sherwood (Tex. Civ. App.) 67 S. W. 776, and authorities cited.

Utimio Rodriguez, the deceased husband of appellee, was in September, 1901, in the employment of appellant, and had been for a time, and was engaged in driving a team and in repairing and building roads and bridges for appellant. On that day he was ordered by the assistant foreman to take five men and bring a log on St. Mary's street to Mill Bridge, in the city of San Antonio. Utimio, in company with the five men, drove his wagon to the place where the log was situated, and proceeded to load it on the wagon. While so engaged he complained of being hurt in his stomach or lower bowels. He was carried home, and in about a week died from the effect of his injuries. The log was about 30 feet long, and from 11 to 16 inches in diameter. It was wet from a rain. Utimio had, prior to the time he was hurt, assisted six men in moving the log to St. Mary's street. No foreman was with the men when the injury was inflicted, and it did not result from any inefficiency on the part of the five men assisting in lifting the log. The only two eyewitnesses to the injury, whose evidence appears in the record, testified that they knew that the log was too heavy for six men to lift, and that it required from eight to ten men to properly handle the log. Utimio, as well as the other men, was accustomed to lifting logs. No objection was made by Utimio to lifting the log with five men. If the traction company is liable for the injury inflicted on Utimio, it must be based on the allegation and proof that he was ordered to perform labor that was dangerous, that his employer was chargeable with knowledge of the dangerous nature of the work, and that deceased was so inexperienced that he did not know the danger attending the work. The allegations in the petition make out that class of case, but they are not supported by the facts, but a case is presented where a laborer willingly undertakes to lift a log that he had assisted in lifting before, and with whose weight it must be presumed that he was as fully acquainted as was his employer. He must have known, as did his fellow servants, that the force provided was inadequate, and yet undertook the work without protest. In the case of Bonnet v. Railway, 89 Tex. 72, 33 S. W. 334, which has gone as far on the line of this case as any reported, the liability of the employer was predicated on the inexperience of the deceased, and the failure of the employer to warn him of the danger of the employment. In the case of Railway v. Sherwood, 67 S. W. 776, decided by this court, the liability of the master was placed on negligence in failing to furnish a fellow servant physically able to properly assist the injured employé in carrying a piece of timber, and which physical incapacity of his fellow servant was not known to the injured servant. It is undoubtedly the duty of the master to furnish an adequate number of competent laborers to perform his work, and a failure to do so will render him liable for any damages to his employés resulting from such failure, provided such failure was not known to the injured servant, and the risk assumed by him. The servant does not assume the risks arising from the want of a sufficient number of skillful colaborers, no more than he assumes the risks arising from the use of defective machinery and appliances; but in either case, when he knows the negligence of the company in providing such labor or appliances, and yet continues in the service, he will be held to have assumed the risks incident to such employment. Or, in other words, if Utimio Rodriguez, with a knowledge of the weight of the log and the number of men required to handle it, undertook to handle it with an inadequate force, he assumed the risks arising from the moving of the log, and the appellant would not be liable.

No Texas case directly in point has been brought to the notice of this court, but similar cases have arisen in other states. In the case of Ferguson v. Phoenix Mills, 61 S. W. 53, the plaintiff was ruptured while endeavoring to lift a truck out of a hole. It was shown that he was inexperienced. The Supreme Court of Tennessee said: "If the wheel of the truck had gone into the hole, and it was the duty of the employé to lift it out, then he cannot hold the master liable for overexerting and straining himself. He is the best judge of his own lifting capacity, and the risk is on him not to overtax it." In the case of Worlds v. Railroad, 25 S. E. 646, the Supreme Court of Georgia held that an employé could not recover for a strain to his back from carrying cross-ties, although he had been ordered to carry them, and had protested against doing so because they were too heavy. In the case of Haviland v. Railway, 72 S. W. 515, the plaintiff, with four others, was required to shove or slide steel rails up a greased incline, and, while so engaged, strained his back. Prior to that time plaintiff, in company with five others, had moved similar rails on a flat car. The Supreme Court of Missouri cited with approval the Georgia and Tennessee cases above named, and held that the plaintiff could not recover. In the case of Walsh v. Railway, 8 N. W. 145, the plaintiff was injured while assisting in moving a millstone. The plaintiff claimed that the negligence consisted in failing to have men and foreman of experience in such matters, in...