Sherman Oil Mill v. Neff

• Decision Date: 12 April 1913
• Citation: 159 S.W. 137
• Parties: SHERMAN OIL MILL v. NEFF.
• Court: Texas Court of Appeals

159 S.W. 137

SHERMAN OIL MILL v. NEFF.

Court of Civil Appeals of Texas. Dallas.

April 12, 1913.

On Motion for Rehearing, May 10, 1913.

On Motion for Rehearing and Additional Findings of Fact, June 7, 1913.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by John Neff against the Sherman Oil Mill. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

J. F. Holt and Head, Smith, Hare & Head, all of Sherman, for appellant. E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

RAINEY, C. J.

Appellee instituted this suit against the appellant to recover damages for personal injuries received by him while engaged in working in and about a cotton gin as an employé of appellant, while it was being operated in Sherman, Tex. In substance he alleged that he was working around certain gin stands engaged in oiling them, and in the performance of his duties it became necessary for him to place his right hand between and near a certain moving belt that operated the gin stands, and that while so doing the sleeve of the jumper he was wearing was caught by said belt, and his arm drawn in between said belt and the pulley on which it worked, and that his arm was so injured that it was necessary to amputate the same. Among a number of grounds of negligence alleged was the following, which was submitted by the court to the jury: "(3) The said belt, through or behind which plaintiff reached, was old, rotten, defective, dangerous, and unsafe for the purpose for which same was being used; was negligently, carelessly, and improperly fastened together; that it was laced together, laced crooked, and was permitted to be and remain too loose." That the condition of said belt was known to appellant and was unknown to appellee. Appellant answered by general denial, pleaded assumed risk and contributory negligence, and especially that at the time and place of injury appellee was the representative of appellant in the immediate charge of said gin stands and machinery, and appliances in connection therewith, and was familiar with the same, and it was his duty as such representative, or foreman in charge thereof, to take notice of the condition of said machinery and appliances, and if the same became defective, or out of repair, it was his duty to repair the same, or in case the repairs were of such nature that he, as such foreman, could not make, it was his duty to report the same to appellant. The cause was tried and resulted in a verdict and judgment in favor of appellee and against appellant for $7,500, from which this appeal is taken.

Appellant complains in its first assignment of error as follows: "The court erred in refusing to give to the jury defendant's requested instruction reading as follows: `In this case you are instructed to return your verdict for the defendant.'" The proposition submitted under this assignment is: "Negligence must be shown by affirmative proof, and, to fix the liability of an employer for injuries sustained by an employé, his negligence must not only be shown, but such negligence must be proved by affirmative evidence to have been the proximate cause of the injury, and the evidence fails to disclose such negligence in this case."

The evidence shows that Neff was working with, and had charge of, the gin stands of appellant and was engaged in oiling them. On the west end of the gin stand on which he was injured there was, about three feet from the floor near the front of the gin stand, a pulley known as the saw pulley; it was about 14 to 18 inches in diameter, and the flat surface of the pulley was about 8 inches wide; that an axle about the same elevation as that of the saw pulley immediately back of it, and 4 or 5 inches from the outer edge of the saw pulley, was a smaller pulley known as the brush pulley. Still back of the brush pulley, and higher up, was an idler, which could be moved back and forth by means of a lever, and the machinery started or stopped, and the belt that operated the same tightened or loosened. The belt passed up through the floor, back of and over the top of the brush pulley, then under and around the saw pulley, then back and over the idler, and back through the floor. The gin was in operation and the belt was moving rapidly. The belt with which this gin stand was operated was laced together, and the ends were not laced straight, and the ends were a little ways apart, being held together by lacing something like lacing on a shoe. Appellee put his hand between the belts, over the brush pulley, for the purpose of oiling a bearing on the back side of the brush pulley, next to the gin stand, when the sleeve of his jumper was caught by the belt, or something, and his arm carried into the saw pulley, where it was injured. There were four gin stands placed side by side about five or six inches apart—so near together that Neff could not go between them while oiling—and in oiling he had to look over the belt to see how to put the oil in the receptacle, and could not watch his arm while between the belts. The gin stands were new, having been installed at the beginning of that season, and had been in operation about one month, although they had not been run regularly and all together the time consumed in running would amount to about one day. Mullenix was foreman and in charge of the gin stands, and instructed Neff that oiling was necessary about every hour. Hard oil could have been used, which would have required replenishing every half-day. Neff had told Mullenix, if he would get 1½ feet of leather, he (Neff) would dress it down and glue it, and he said, "Go ahead and lace it until it stretches, and then we could fix it some Sunday." For the four gin stands one belt was used for the operation of each; two were laced and two were glued. It was common to use laced belts, but it was preferable to use glued ones.

Neff testified, in part:

"I reached in between the belts and oiled this inside journal because that was the only way to get to it. I could not see where my hand and arm was, at the time I put my arm through to do this oiling. The belt was in my way, top belt. If I had only had one stand there instead of four, I could have seen, by stooping down. I could not see in this instance with the four stands there, because I could not get around to the end where I could look in there. I have never worked at a gin stand where I had to reach in between the belts and oil inside journal until I went to oiling these particular gin stands. There was a little crack down about one-half inch between the belt and the top part that sets right over the brush where I could see the inside journal that I was attempting to oil to see if the oil was going inside the journal. I would stand back behind the saw pulley, put my arm over the little pulley, my oil cup in my right hand, and then bend over the top of the saw pulley and look down through a little crack on the far side of the pulley belt and see where the oil was striking —put my right hand down like that—and peep over. There was no other way by which this oil cup could have been filled without going between the belt as it was constructed, at that time. There was a way that it could have been constructed so that I could have oiled it without going between the belt. You could have sawed that part off a little there right behind the gin stand; that is, the part that sets over the brush. I would have sawed off about four inches of that board, then you could have put a hinge on the board, and when I wanted to oil the inside journal, pull that piece of board back and reach over the belt. It would not have been necessary to go between the belts at all. Then the board when I finished oiling would go right back in place. It would have cost about 40 or 50 cents, I think, to do that. I was reaching through there to oil this cup, and that belt caught my jumper sleeve and jerked it around into this saw pulley into the belt. I was reaching over this little pulley, which is about four or five inches from the big pulley, and my hand and arm was thrown under the saw pulley, and then it just tore it off, is all I know—ground my arm off. When my hand and arm was caught there between the belt and the saw pulley, it jerked me down against the frame of the stand. When it caught me, it just jerked me down against the frame of the stand and then wound my arm around that pulley until it tore the jumper off and then turned me loose—it turned me loose after it tore my jumper off; besides tearing my jumper, it tore my arm off; it just bursted it, tore all the bones out of it. I went to work for the defendant in 1909 at its gin stand and worked that season of 1909-10 attending the suction; just run the suction from the wagon that had the cotton in it. I guess I did that work about a month or such a matter, and then I went to tying out bales; that is, just putting hoops and ties around bales and tying them and rolling them downstairs. I stayed there at that work the rest of the season—the 1909-10 season. The season generally lasts about four months.

"When I went back to work in 1910, I started to running the gin stand, and continued in that work up to the time I was hurt. My recollection is that was in 1910. I started to work about the 1st of August—best of my recollection. I quit the season about the middle of January, then I went back to the same job in 1911, went back to work about the middle of August. We...