Sherrill v. American Well & Prospecting Co.

• Decision Date: 08 May 1915
• Docket Number: (No. 7300.)
• Citation: 176 S.W. 658
• Parties: SHERRILL v. AMERICAN WELL & PROSPECTING CO.
• Court: Texas Court of Appeals

176 S.W. 658

SHERRILL v. AMERICAN WELL & PROSPECTING CO.

(No. 7300.)

Court of Civil Appeals of Texas. Dallas.

May 8, 1915.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by S. T. Sherrill against the American Well & Prospecting Company. From a judgment for defendant, plaintiff appeals. Affirmed.

A. B. Geppert, of Teague, and Richard Mays, of Corsicana, for appellant. Davis & Jester and Callicutt & Johnson, all of Corsicana, for appellee.

RAINEY, C. J.

Appellant instituted this suit against appellee, a corporation, to recover damages for personal injuries sustained through the alleged negligence of appellee; the allegations, in effect, being that appellant was an employé of appellee working under appellee's night foreman C. C. Hull; that while in the discharge of his duties, about 11:45 on the night of December 31, 1913, some of the employés had drilled a hole in a piece of iron to be filled with powder for the purpose of an explosion to celebrate the incoming year; that while said employés were filling said hole with powder in said building near where appellant was at work, and while tamping the powder with an iron rod, said powder was caused to explode, causing a small particle to fly from said iron and to strike appellant in the eye, destroying the sight thereof.

Appellee answered by general and special exceptions, admitted that appellant was an employé, denied that Hull had any right or authority to employ or discharge employés, his duties being to work as other employés, to keep them at work and supply them with new work as occasion required, but he had no authority to give permission, to direct or control any employé, to do the things alleged. It also denied that it closed down its machinery a few minutes before 12 o'clock to celebrate the incoming of the New Year, or that it was customary for it so to do, or that it engaged or aided in such celebration, on that occasion, but that, if any of the employés closed down their machines or quit work and aided in loading said iron for the purpose of taking part in said celebration, it was done of their own volition, and not in furtherance of appellee's business. It further alleged that appellant of his own accord joined in the spirit of the occasion, contributed thereto, and participated therein with full knowledge of what was going on.

After hearing the evidence, a verdict was instructed for appellee, and the appellant prosecutes this appeal.

The liability of appellee for the injuries sustained by appellant depends upon one issue, and that is: Was it negligent in failing to provide appellant a safe place to work at things for which he was employed, or, in other words, was the appellee liable under the circumstances for allowing some of its employés, who were not at the time engaged in the master's business, to drill a hole in a piece of iron and fill it with powder in a room of its plant where the iron accidentally exploded in the act of being charged with powder; said room being the one in which appellee was at work?

The conclusions we have drawn from the evidence...