Southwest Cotton Co. v. Pope

• Decision Date: 21 July 1923
• Docket Number: Civil 2038
• Citation: 25 Ariz. 364,218 P. 152
• Parties: SOUTHWEST COTTON COMPANY, a Corporation, Appellant, v. W. J. POPE, Appellee
• Court: Arizona Supreme Court

218 P. 152

25 Ariz. 364

SOUTHWEST COTTON COMPANY, a Corporation, Appellant, v. W. J. POPE, Appellee

Civil No. 2038

Supreme Court of Arizona

July 21, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded, with directions to dismiss complaint.

Mr. G P. Nevitt, Mr. J. B. Ogg, and Mr. Samuel White, for Appellant.

Messrs Kibbey, Bennett, Gust & Smith and Mr. J. E.Noble, for Appellee.

OPINION

ROSS, J.

While on defendant's premised at Tolleson, Maricopa county plaintiff came in contact with a piece of machinery being used and operated by defendant and was injured. He sued the defendant charging negligence in the respects hereinafter stated. The defendant answered by a general denial contributory negligence and assumed risk. A trial before a jury was had which resulted in a verdict and judgment in favor of the plaintiff. Defendant appeals.

The defendant at the time was extensively engaged in the growing of long staple Pima cotton in the Salt River Valley, and, for the purpose of separating the seed from the lint, had constructed at different places throughout the valley some sixteen plants or cotton-gins, one of which was at Tolleson. The seedhouse where the accident occurred was used in conjunction with the defendant's gin. It was thirty-four feet by twenty feet, running north and south the long way; the walls were fourteen feet high; there were small windows on the south, east and north sides.

The cottonseed, as they were separated from the cotton, were deposited in an electrically driven seed auger or conveyor, extending from the floor of the gin to and above the ceiling rafters in the seedhouse, and in its revolutions the seed were carried from the gin to the seedhouse and deposited there. Under the ground floor, at the center of the seedhouse and extending its entire length north and south, is another electrically driven seed auger or conveyor which carries the seed into railroad cars spotted on the track near the south wall of the building. This conveyor occupied the space between two floor joists about fourteen inches apart, and was covered by removable strips about eighteen inches long by fourteen inches wide fastened on wooden cleats and fitted so snugly as the complaint alleges, that they --

"were identical in appearance with the remainder of said flooring and were smooth and even, on a level with the remainder of the floor in said building; that when said strips of flooring were in place covering said conveyor it was impossible for one unacquainted with the operation of said seedhouse to know that said conveyor was being operated beneath said flooring."

The conveyor would choke if too many seed got into it, so it was necessary that someone feed it. To do this, one or two of the strips would be removed and the seed shoveled into the opening, the rest of the conveyor being kept covered with strips. The cottonseed were banked up around the east, north, and west walls, but the floor in the center of the building extending from the south wall along the trough of the conveyor and for some distance on each side thereof, was kept fairly free of seed, so that the person feeding the conveyor could see that part of the flooring covering same and get about easier thereon in performing his duties than if it were covered with cottonseed. The entrance into the building was on the south side and east of the conveyor.

November 17, 1920, the defendant was engaged in loading from said seedhouse into a freight-car a load of seed by means of the conveyor underneath the floor of the seedhouse. T. L. Tucker, the foreman for the defendant at its Tolleson gin, was in the seedhouse attending to the feeding of the auger or conveyor. In the middle of the afternoon of that day the plaintiff, as he alleged in his complaint, being "engaged in the occupation of selling gasoline and lubricating oils, and at the invitation of defendant went into said seedhouse for the purpose of interviewing the gin foreman, a man by the name of Tucker, who was then and there in said seedhouse." Plaintiff first went to the defendant's general office, announced his business as salesman of the Union Oil Company and engaged in looking up some empty barrels, and was told by the two young men in the office that they knew nothing about barrels, and to see the foreman, Mr. Tucker, who was somewhere out about the gin. On his way from the office to the gin plaintiff found two Union Oil barrels in the yard and checked them. Proceeding to the gin he asked two other employees of defendant for Tucker, and was told he was somewhere about the seedhouse where seed were being loaded. He then approached a car on the south side of the building, and one of the two men working therein, in response to his inquiry, told him Tucker was inside the seedhouse. As plaintiff explained, he entered the building at the south door and advanced to where Tucker was feeding conveyor. Tucker's back was to him and he did not know of plaintiff's presence until spoken to. He inquired about some containers, and was told that one was empty or about so, but that there was considerable oil in the other. He then asked Tucker how his purchases were made, and was told by Tucker that when he was in need of oils he took it up with the general superintendent of gins, who in turn took it up with Mr. Feeley, the general purchasing agent, who placed the requisition for the commodity wherever he chose. During this conversation they were standing near the trough of the conveyor, and closer to the north wall of the building than to the south wall. Tucker during the time, as he says, was feeding the conveyor through an opening the size of one of the strips which had been removed. The rest of the conveyor was covered by strips.

The plaintiff testified:

"After I had completed my business with him, I bid him good-bye and started straight out the south door. I had only gone two or three steps when the accident occurred. The first thing I knew my foot was in the seed auger. The first thing I did was holler, 'Shut her down!' when I realized my predicment, and one of the boards was digging into my ankle here (indicating). When I hollered, Mr. Tucker ran out of the south door, and it was just a very short time until the power was turned off the auger, a very few seconds."

He also testified he did not know there was an auger under the floor; that the light was not very good; that, so far as he knew, the boards covering the auger were down over it; that he saw no difference in the floor; that he did not see any machinery prior to the accident; that there was nothing in the seedhouse to indicate it as anything but a storage-room; that the only noise he heard was "something that sounded as though hail was beating on a tin roof." The plaintiff had never been in the seedhouse before.

Mr. Tucker, the only other witness who was present when the accident happened, agreed with plaintiff's statement in that he did not know until spoken to that plaintiff was in the building, and also as to the substance of the conversation. He testified that after plaintiff had turned to go he resumed the work of feeding conveyor, and that almost instantly he heard plaintiff yell, and looked and saw that his foot was caught in the auger; that he did not know how it happened or how it occurred; that it was a mystery how he got in there. He said the light was good. This witness testified that "as far as he knew the conveyor and the machinery and the methods used in conveying seed from seedhouse is the usual and customary method used here in the valley." He further said that he considered the auger was safely constructed.

The specific acts of negligence charged against defendant are:

"That on the 17th of November, and for some time prior thereto, defendant had negligently and carelessly allowed and permitted one or more of the strips of flooring hereinbefore described covering said conveyor to become worn, loosened, and weakened, and the joists and planks forming the trough of said conveyor and supporting said strips of flooring to become worn, loosened, and weakened; that by reason thereof the floor in said seedhouse, and particularly that portion of the flooring covering said conveyor, had become dangerous and insecure, and a wholly unsafe place for any person to walk . . . . That while plaintiff was in said seedhouse, as aforesaid, and in the exercise of reasonable care and caution for his own safety, one of the strips of flooring which defendant had negligently and carelessly allowed to become loosened, weakened, and insecure, as aforesaid, gave way beneath plaintiff, and plaintiff was immediately precipitated down into and upon said iron, screw, auger, worm, or conveyor, which was then and there revolving at a high rate of speed . . . ."

The defendant's principal grievance against the action of the trial court is the refusal to grant its motion for a directed verdict at the close of plaintiff's case and again at the close of the whole case, first, because, as it asserts, of a failure of proof to sustain his allegations of negligence; and, second, because the testimony shows that plaintiff was not an invitee but a mere licensee at the time of his injury, and that even though the business of the plaintiff might have been for the mutual and common benefit of both plaintiff and defendant, entitling the plaintiff to admission to defendant's general office to solicit business and to inquire for barrels and empty containers, it did not authorize him to go into the defendant's seedhouse, and that in doing so he was a mere licensee.

The only ruling upon the motion for a directed verdict properly before us is the one at the close of the whole case, since ...