Southwestern Portland Cement Co. v. McBrayer

• Decision Date: 12 October 1911
• Court: Texas Court of Appeals
• Parties: SOUTHWESTERN PORTLAND CEMENT CO. v. McBRAYER.<SMALL><SUP>†</SUP></SMALL>

140 S.W. 388

SOUTHWESTERN PORTLAND CEMENT CO. v. McBRAYER.^†

Court of Civil Appeals of Texas. El Paso.

October 12, 1911.

On Motion for Rehearing, November 1, 1911.

Appeal from District Court, El Paso County; James R. Harper; Judge.

Action by E. E. McBrayer against the Southwestern Portland Cement Company. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing.

Burges & Burges, for appellant. F. G. Morris, S. B. Gillett, and Patterson & Wallace, for appellee.

PETICOLAS, C. J.

This was a suit by the appellee, as plaintiff, alleging in substance that, while working for appellant (defendant below) as a carpenter, he was injured by the breaking of a ladder furnished by the defendant which was defective and which defendant had failed to fully inspect. There was a judgment for plaintiff, and defendant appealed.

The defendant pleaded that the ladder used by appellee was an ordinary ladder, its construction and condition obvious to any one using same, and plaintiff as a carpenter was so familiar with ladders that no duty of inspection devolved on defendant, and it now contends that it comes within the rule of law laid down by the Supreme Court in Railway v. Larkin, 98 Tex. 225, 82 S. W. 1026, 1 L. R. A. (N. S.) 944, and therefore the general exception should have been sustained and that no recovery can be had. Appellant likewise assigns error on the refusal of the trial court to give a charge requested by it embodying this question of whether there was any duty of inspection on defendant. The appellee contends that the ladder, under all the circumstances and facts in this case, and the method of its use, was such as that the use of the ladder did not fall under the rule of law laid down in the case referred to, and contends that the injury and accident in this case are to be governed by the ordinary rules of law, and therefore, the relation of master and servant obtaining between plaintiff and defendant, there would be upon the defendant the usual and ordinary duty of inspection. The appellant contends that in this particular case there was no duty of inspection upon the master. We do not think the general demurrer should have been sustained. In the Larkin Case, referred to, Judge Brown held, as we read that decision, that a lantern globe in the general custody of the servant injured by its breaking was so simple and common an appliance as under the circumstances of that case to relieve the master of any duty of inspection. Or, in other words, that as a matter of law under the facts of that case an ordinarily prudent man would not have inspected the lantern, and therefore the failure to do so was not negligence. In Drake v. Railway, 99 Tex. 240, 89 S. W. 407, in which case a servant was sent upon a car to use a hook in drawing rails upon the car, which hook was already thereon and with which he was unfamiliar, and which was worn, bent, and defective, and which he was required to use hurriedly, Judge Williams said: "In determining whether or not the evidence raises an issue of fact for the jury as to the master's negligence, the facts are to be considered in their combination and an answer found to the inquiry whether or not they warrant a reasonable opinion that there was wanting on the master's part that ordinary care exacted by the law for the safety of his employé. This is not to be determined in a case like this by any hard and fast rules of law as to the duty of inspection, but by the judgment of rational minds upon the facts, and if there be room for reasonable differences of opinion the judgment of a jury must be taken." In that case a recovery by plaintiff was sustained. In Adams v. Railway, 101 Tex. 5, 102 S. W. 908, cited by appellee, the Supreme Court, answering a certified question, held that where a master furnished a ladder for the servant's use in descending into a tank car, where the servant had called attention to a defect in the ladder and had the promise of its repair, where the ladder was in the dark car when used, was defective, and did break, that plaintiff's right to recover should be submitted to the jury.

From these cases we deduce that machinery and tools furnished by a master for the servant's use may be so intricate and complex that any ordinarily prudent man would, as a matter of law, have inspected the appliance, and it is not necessary for the court to submit the facts to the jury as to whether in the given case an ordinarily prudent master would have inspected, but may directly charge them that the law requires of the master the duty of inspection. Again, a case may arise (like the Larkin Case) in which as a matter of law the tool or appliance used is under the circumstances so simple and common, and one with which the servant is so familiar, that an ordinarily prudent master would not have inspected, and it is proper for the trial court to tell the jury that no duty of inspection devolved on the master. But it would seem that there may arise a case in which rational minds may differ as to whether the tool or appliance used is, under the circumstances of the given case, in the one class or the other, and as to whether an ordinarily prudent man would under the circumstances have inspected or not, and such we believe is the case at bar. It was not such a case as that the trial court should have instructed that there was, as a matter of law, no duty of inspection on the master, nor a case in which the court might instruct definitely that there was a duty of inspection, but was one in which the court should have submitted to the jury the question whether, under the circumstances, an ordinarily prudent man would have inspected the ladder, and whether the failure to inspect, if such there was, was negligence. The appellant requested a charge on this issue which, though not correct in itself, was, we believe, sufficient to call the court's attention to the issue and to have required from him a charge thereon, affirmatively presenting the question of whether, under these facts, there was any duty of inspection on the master. See Carpenter v. Dowe (Civ. App.) 26 S. W. 1002; Railway v. Cusenberry, 86 Tex. 525, 26 S. W. 43; Leeds v. Reed (Civ. App.) 36 S. W. 348.

The difficulty that we have had in determining the correct rule of law in this case was to determine whether there are the three classes of cases which we mentioned, or whether there are but two classes. In other words, whether it is the duty of the court to determine, as a matter of law, that in the given case a duty of inspection rested on the master, or that no duty of inspection did rest on him, and we feel very different in holding that there is a third class of cases, where the question of whether or not there is in the given case a duty of inspection becomes one of fact. In the Larkin Case referred to, in discussing the issues there presented, Judge Brown said: "There may be, and doubtless are, cases in which it is a question of fact that should be submitted to the jury as to whether the machinery or implements, tools, and the like, were of such character as to require inspection as a safeguard against danger." We have concluded, therefore, as heretofore indicated in this opinion, that there is this third class of cases, that this case is one of them, and that the trial court should have submitted to the jury as an issue of fact whether or not any duty of inspection rested on the master in this case. We are not unmindful of the fact that plaintiff alleged as negligence not only the lack of inspection, but also that the defendant furnished a defective ladder. Notwithstanding the fact that plaintiff alleged the two grounds of negligence, if the charge requested on the subject of inspection, or a sufficient charge on that subject in lieu thereof was not given, the failure to give it was error, and as we are of opinion that it was error, and such error as was reasonably calculated to have induced a different result had it been given, the case will be reversed and remanded for a new trial. In view of another trial, we may say briefly that we think the evidence justified the submission of the issue whether or not defendant furnished the ladder, and we may say that, while we believe the court's charge was sufficient as a charge on latent defects, yet, if the evidence shall on the next trial call for a charge on latent defects, it might be advisable to give same more fully.

Reversed and remanded.

On Motion for Rehearing.

At the beginning it will be remembered that in this case the appellee alleged two grounds of negligence: One, that the defendant furnished a defective ladder; the other, that the defendant failed to inspect such ladder. In alleging the issue of failure to inspect such ladder, the appellee made it incumbent on the court to inform the jury to what extent such failure might or might not, under the circumstances, be negligence.

It is contended by appellees in motion for rehearing that whether or not there was a duty of inspection upon the defendant was by the court's charge submitted as an issue of fact. In this we do not agree with counsel. The fifth paragraph of the court's charge was as follows: "If the jury believes from the evidence that the ladder complained of was furnished by defendant through its employés for the use of workmen employed by defendant, and that said ladder was defective and weak in one of its crosspieces by reason of a crossgrain in the wood of said crosspiece or by reason of nails being driven through the ends of it and into the ends of it which may have caused the timber of said crosspiece to split, or by reason of both of said defects, if they existed, and if you shall further believe from the evidence that such defect or defects, if any existed, was or were such as might have been discovered by defendant by the use of such care as an ordinarily prudent person would have used under the same or similar circumstances, and that defendant failed to use such care to...