Taylor v. White

• Decision Date: 05 April 1913
• Parties: TAYLOR v. WHITE.
• Court: Texas Court of Appeals

156 S.W. 349

TAYLOR v. WHITE.

Court of Civil Appeals of Texas. Amarillo.

April 5, 1913.

Rehearing Denied May 3, 1913.

Appeal from District Court, Potter County; J. N. Browning, Judge.

Action by W. W. Taylor against Frank A. White, as receiver of the Amarillo Water, Light & Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Synnott & Fish and C. B. Reeder, all of Amarillo, for appellant. Turner & Wharton and Cooper, Merrill & Lumpkin, all of Amarillo, for appellee.

HUFF, C. J.

W. W. Taylor, appellant, brought suit in the district court of Potter county against appellee, Frank A. White, as receiver of the Amarillo Water, Light & Power Company. The case was tried before a jury in the court below. The trial judge instructed a verdict for the defendant, appellee, and in obedience thereto the jury returned a verdict for appellee, and judgment was rendered in accordance therewith, from which this appeal is prosecuted. The appellant in his petition charges negligence against the appellee in failing to banister a certain exciter in the plant operated by appellee, and that appellee negligently placed a rench close to the exciter, over which appellant tripped and fell and his hand went into the exciter and was injured, for which he sues for damages. He also alleges that appellee promised to banister the exciter, and relying upon that promise he remained in the service of appellee. Appellee pleads the general issue assumed risk in its various phases and contributory negligence. "Plaintiff testified that he began working with defendant as receiver of the Amarillo Water, Light & Power Company September 1, 1909; that J. B. Scott employed him; that when he took up any matters with defendant defendant told him to go to Scott with them; that the plant where he worked had an engine room about 60 feet square, and a producer room about 30 by 40 feet; that there were three engines, four alternaters, three exciters, and two other machines in the one room, the boilers being in a separate room; that an exciter is cylindrical, and the one he got hurt on was about 30 inches long and 1 foot in diameter; that the exciter had an outside metal casing, and from the top of this to the floor it was about 2 feet; that in this casing there were 4 openings about 6 inches at one end and 18 inches at the south and where the current was generated; that inside of this casing was the commutator, a cylinder about 12 inches in diameter, and 3 feet long, extending the length of the casing; that the casing was about 2 feet in diameter with 4 slits in it 6 inches wide at one end and about 18 at the other and 16 to 18 inches long; that the commutator is smooth and brushes set in the frame rested on the cylinder, and, when the cylinder revolved, the friction between it and the brushes generated the electricity, and that the cylinder when running made 750 revolutions per minute. He further stated that this machine was located about 3½ feet from a banister on one side, the same distance from a door and 5 or 6 feet north of the engine, and that there was another engine north of this machine about 3 feet from it, and that west of the machine was a hole in the floor leading to the basement banistered on three sides, and from this to the machine in question was about 3½ feet, and that the exciter had a banister on one side but none on the other. He further said that he was employed to operate this engine, and in doing it he would pass the exciter every 10 or 15 minutes, sometimes every 5 minutes, and that part of his duties were to clean the exciter, put in new brushes, etc.; that at the time of the accident he had been on one side of the machine, cleaning it, and was walking around the machine to the other side; that something tripped him, and he fell with his breast on the frame of the machine, and his right hand fell into the machine, and it was torn.

T. H. Armstrong testified that he saw plaintiff stumble over a stilson wrench on the floor and fall into the machine. On cross-examination this witness said he himself left the wrench there; that he was firing for plaintiff that morning, and, when he was injured, was holding the speed of the engine down while plaintiff cleaned the exciter; that witness was making gas under Mr. Scott, who was directing his work that morning; that he came in there at that time to help Taylor; that they were supposed to help each other. "I overheard Mr. Taylor speak to Mr. Scott three times that I remember distinctly about banistering up that exciter. The first time he and I were standing there, looking at the guard rail by the belt, and Mr. Scott asked how we liked it, and Mr. Taylor said it was all right, but asked if Scott did not think it would be a good idea to bring this rail around the exciter, and Mr. Scott said, `Yes; that is so.' The second time I heard not all of the conversation. Mr. Taylor asked him if he would have it done, have the guard rail put around the exciter. I did not hear Mr. Scott's reply. The next time I remember Mr. Taylor said: `Mr. Scott, are you going to have this guard rail put around the exciter or not?' He said: `Yes; I will by God, as soon as I can get to it.' That is all the times I remember. The first conversation took place eight or nine months before the injury. The next time after that, about four months before the accident, the matter was mentioned again, and the last time the question came up was about six weeks or two months before the accident and injury took place."

Appellant on direct examination testified: "I had spoken three or four times to Mr. Scott about banistering up that exciter. The first time shortly after the engine was put there in June or July, 1910, I asked him if he did not think it would be a good idea to put a banister around there, that without it it was dangerous with the commutator; we had to go there every time we went to the ignition of the engine, and he said he would fix it right away. It was quite a while after that before I said much about it. I asked him about it, and he said he would fix it right away, that he was so busy before he had no time to fix it. I asked him when he would, and he said as soon as he could get to it. I last spoke to him about it in March or April, 1911, about two months or six weeks before I was injured. I asked him if he would fix that machine, and he said `Yes,' that he would as soon as he could get to it, right away. I thought that he would do it." On cross-examination appellant testified: "I knew there was no guard rail around there. Each time I asked Mr. Scott about fixing it he said he would see about it. The last time he said he would do it right away. I do not remember my exact words in the deposition. I said this last conversation took place six weeks or two months before the accident. The second conversation prior to the last time he said he was pushed for time, but said he would fix it as soon as he could get to it. On my direct testimony this morning I said that he promised to fix it, to fix it right away. I understood that he was going to put the banister around as soon as he had a chance to get to it."

Frank A. White, receiver for the Amarillo Water, Light & Power Company, testified as follows: "I have been in the light and water business now from the position of office boy to manager of companies since 1888. I have been employed in something like 12 plants. I have visited 200 or 300. I was employed in the Kansas City Electric Company for 16½ years, which had 10 plants in and around Kansas City. That machine required considerable attention, and at times it was necessary to visit it two or three times an hour, generally that often to oil and wipe it. It was cleaned with sandpaper on a block. There are four openings in it for the purpose of getting to the brushes to adjust and clean them; for the purpose of watching the commutator and cleaning it. There was no guard rail around that end of the commutator because it is not considered good policy to place guard rails around any dynamo, as it is necessary for the attendant to get in close to them to perform his duties, and they are protected by stationary parts so that only a small portion of the revolving parts are exposed. It is dangerous to get a man between a machine of this character and a guard rail, as he has no opportunity to get away or in case of accident or in case anything should happen to other machines he would have to climb over to get to it. You could not sand it if there were guard rails all around the machine. To put a guard rail on would keep a man from falling into the machine, but would have to be placed in such a distance from the machine that it would be impossible for a man to get to the commutator and properly clean and sand it without moving the guard rail. I have visited 200 or 300 plants in the United States. Have been in one of the largest plants in San Francisco, San Diego, El Paso, Chicago, at Niagara Falls, St. Louis, Pittsburgh, New York, and Washington. I have been all over the country, and I observed the condition of the machines and exciters in these plants, and I never saw an exciter with a guard rail around it in all the places I have visited. The railing around the belt is to protect people from getting against the belt. It does not absolutely protect a man from falling into the belt, but it lessens the danger. Very few electrical machines are...