Taylor v. White
| Decision Date | 11 June 1919 |
| Docket Number | (No. 19-2620.) |
| Citation | 212 S.W. 656 |
| Parties | TAYLOR v. WHITE. |
| Court | Texas Supreme Court |
Action by W. W. Taylor against Frank A. White. Judgment for defendant affirmed by Court of Civil Appeals (156 S. W. 349), and plaintiff brings error. Affirmed.
Synnott & Fish and C. B. Reeder, all of Amarillo, for plaintiff in error.
Turner & Wharton and Veale & Lumpkin, all of Amarillo, for defendant in error.
The question presented in this case is whether or not the plaintiff, Taylor, who sued for damages for personal injuries alleged to have been caused by the negligence of defendant, adduced evidence sufficient to entitle him to have his case submitted to the jury.
The trial court directed the jury to return a verdict for defendant. A full statement of the evidence will be found in the opinion by the Court of Civil Appeals affirming the judgment of the trial court. 156 S. W. 349.
In substance the testimony shows that at the time of his injury plaintiff was engaged as engineer in the Amarillo Light & Power Plant, which was being operated by defendant as receiver. In the engine room of the plant was located a machine known as an exciter. This machine was shaped like a cylinder and was about 30 feet long and 12 feet in diameter. It was covered with a metal casing about 2 feet in diameter with four openings in it, 6 inches wide at one end, and about 18 inches at the other, and 16 or 18 inches long. It was about 2 feet from the top of this casing to the floor, and inside of it was a commutator, a cylinder about 12 inches in diameter and 36 inches long, extending the length of the casing. The commutator was smooth with brushes set in the frame which rested on the cylinder, and when the cylinder revolved the friction between it and the brushes generated the electricity. The cylinder when running made 750 revolutions per minute. The exciter was located about 6 feet north of one of the engines in the room and about 3 feet south of another. West of the exciter about 3 feet was a hole in the floor leading to the basement bannistered on three sides. The exciter had a bannister on the east side of it. The exciter was located in open view with ample room for passage around it. Plaintiff's duties require him to pass in close proximity to the exciter every five or ten minutes. It was a part of his duties to clean the exciter and put in new brushes. On the occasion of his injury plaintiff was engaged in cleaning the exciter, and, passing around the machine from one side to the other, he stumbled over a wrench which he did not see, and fell with his breast on the frame of the exciter, his right hand going into the machine, causing the injuries complained of. The wrench over which plaintiff stumbled had been left on the floor about ten minutes before the accident by a fellow servant of plaintiff who was assisting him in his work.
The negligence alleged is that defendant failed to place a guard rail around the exciter, and that defendant negligently placed the wrench over which the plaintiff stumbled in close proximity to the exciter. Plaintiff also alleged in reply to the plea of assumed risk that defendant promised to put a guard around the exciter, and that, relying on said promise, he remained in the service.
In our opinion, the evidence is not sufficient to show that defendant was guilty of negligence in failing to provide a guard rail. The master is required to exercise ordinary care to provide his servant with a safe place to work and with reasonably safe and suitable machinery and appliances with which to do his work; but he is not an insurer. The measure of care required of the master is that degree of care which an ordinarily prudent person engaged in the same kind of business would have exercised under like or similar circumstances. The best evidence of the degree of care which an ordinarily prudent person would have exercised under given circumstances is the degree of care which ordinarily prudent persons engaged in the same kind of business customarily have exercised and commonly do exercise under like circumstances.
The evidence without controversy shows that exciters of like kind were in general use throughout the country, and that no guard rails were provided in any of the plants using these machines to protect the employés. The custom of others engaged in like business is not the absolute test of negligence, but where the undisputed evidence shows affirmatively, as it does in this case, that the defendant was...
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