Swift & Co. v. McElroy

• Decision Date: 10 March 1939
• Docket Number: No. 13875.,13875.
• Parties: SWIFT & CO. v. McELROY.
• Court: Texas Court of Appeals

126 S.W.2d 1040

SWIFT & CO. v. McELROY.

No. 13875.

Court of Civil Appeals of Texas. Fort Worth.

March 10, 1939.

Rehearing Denied April 14, 1939.

Appeal from District Court, Smith County; Nat W. Brooks, Judge.

Action by Bernie McElroy, against Swift & Co., an Illinois corporation, and Swift & Co., a Delaware corporation, for injuries sustained while attempting to aid defendants' employees in herding hogs in defendants' stockyards. From a judgment for plaintiff against Swift & Co., an Illinois corporation, such company alone appeals.

Affirmed in part, and reversed and rendered in part.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, for appellant.

Phillips, Williamson & Smith, of Tyler, for appellee.

BROWN, Justice.

Appellee took a load of hogs to appellant's stock yards, in Dallas, for the purpose of selling them to appellant. He was told by one of appellant's employees "to follow his hogs through"— that is to say, to accompany his hogs through the chutes to the pen where the scales were situated, on which the hogs would be weighed; and appellee followed such instructions.

There were groups or herds of hogs both in front of and behind appellee. It was the duty of the owner of a herd of hogs to close the chute, or pen-gate, behind him so as to separate his hogs from those following, and it was likewise the duty of the owner to see that the gate in front of his hogs was closed, when the herd preceding his passed into the pen in front of such owner.

All of this was done by appellee and other owners, and the appellant's employees, who were weighing the hogs were in the pen where the scales were situated.

Appellee went into the pen where the scales are situated, when the herd in front of him was in such pen to be weighed.

No invitation, or request, on the part of any of appellant's employees caused appellee to enter such pen. He went in on the general invitation given him "to follow his hogs through".

While appellee was in the weighing pen, one of the hogs, after being driven on the scales by an employee of appellant, turned and ran toward appellee. At this juncture appellee raised his foot and kicked, or attempted to shove, the hog to prevent him from running into or over him, and by so doing put his foot on the hog's head. One of appellant's employees, who was using a stick in driving and herding the hogs in the weighing pen, struck at the hog just as appellee put his foot on the hog's head and the descending stick struck appellee's foot, inflicting upon him the injuries for which the suit was brought.

Appellee (plaintiff below) pleaded his case as follows: "That plaintiff, in response to the expressed and implied request, solicitation and invitation of defendants, their agents, servants and employees, was assisting the agents, servants and employees in herding the hogs through the chute or chutes of defendants' company plant, and one of such agents, servants and employees was wielding and brandishing a large, stout club used in the separation and segregation of hogs, and negligently struck plaintiff across the left foot as aforesaid. As one of the hogs in the chute broke away from the other hogs and came in plaintiff's direction, plaintiff lifted his left foot in order to cause the hog to swerve or turn back and defendant's agent, servant and employee negligently struck plaintiff across the foot."

The specific acts of negligence alleged are, in substance, that the employee did not keep a proper lookout for the safety of plaintiff, while he was wielding and brandishing the club; that he recklessly and heedlessly brandished and wielded the club where human beings were accustomed to be; and in failing to use ordinary care to protect plaintiff from injury.

The cause was tried to a jury, on special issues, submitted as to the responsibility of Swift & Company, an Illinois corporation. On the answers, the trial court rendered judgment for appellee against said company.

The trial court refused the defendant's request for a peremptory instruction, and its motion for judgment notwithstanding the verdict.

An appeal having been taken to the Court of Civil Appeals for the Sixth Supreme Judicial District, same was transferred to this Court by the Supreme Court.

We think the trial court should have granted the defendant's request for a peremptory instruction, for two reasons: First, regardless of appellee's pleadings, the undisputed testimony shows that appellant's employee neither invited nor requested appellee to come into the pen where the accident occurred, and never requested appellee to assist in herding the hogs that were in the weighing pen; and appellee did not testify that he was assisting in the herding.

We have concluded that, under the facts testified to by appellee, he was a mere bystander at the time he was injured. He was bordering upon the realm of a trespasser, at the time. As such, the defendant's employee could not owe appellee a greater duty than to refrain from doing some wanton or willful act, or to not be guilty...