Trinity County Lumber Co. v. Denham

• Decision Date: 24 May 1892
• Citation: 19 S.W. 1012
• Parties: TRINITY COUNTY LUMBER CO. v. DENHAM.
• Court: Texas Supreme Court

19 S.W. 1012

TRINITY COUNTY LUMBER CO. v. DENHAM.

Supreme Court of Texas.

May 24, 1892.

Commissioners' decision. Section A. Appeal from district court, Polk county.

Action by H. S. Denham against the Trinity County Lumber Company for damages for personal injuries. From a judgment for plaintiff on a trial, defendant appeals. Reversed.

Robb & Stephenson, Jas. E. Hill, and J. R. Burnett, for appellant. Nunn & Nunn, for appellee.

COLLARD, J.

This is the second time this cause has been appealed to the supreme court. The proceedings of the former appeal will be found reported in 73 Tex. 78, 11 S. W. Rep. 151, and following. In the first part of the opinion as there reported will be found a clear statement of the case, which relieves us of a further general statement, except as hereinafter noticed. On the last trial there was a verdict and judgment for plaintiff for $15,000, from which the defendant, the Trinity County Lumber Company, has appealed.

In addition to what was shown on the former trial as to the repairs on the idler, — two by six inch diagonal braces, — testimony of defendants now shows that pieces one by six inches were also nailed across the frame for additional support. Hazard and Platt — men employed at the mill at the time of the injury, one in charge of the saw, and the other at work near the idler — testified, however, by depositions for plaintiff, and said nothing about the cross pieces nailed to the frame.

As most of the assignments of error relate to the charge of the court, we will insert the principal part of it, as follows: `On the question of negligence you are instructed that it is the duty of those owning and operating steam sawmills, through their agents or managers, to provide suitable and reasonably safe machinery for operating said mills, such kind and character of machinery as is commonly used by skilled and experienced mill men, and such as they could, by the use of ordinary skill and diligence, provide; and a failure so to do and provide would be, in law, negligence. The mere fact that an accident happens or an injury occurs is not, of itself, proof of negligence, and mill men are not required by law to exercise the highest possible degree of care and diligence of which the human mind can conceive, or such degree as would prevent every possible accident; but they are only required to exercise ordinary skill and diligence, by which is meant that degree of care, skill, and diligence which an ordinarily prudent man would commonly exercise in the conduct and management of his own business of like character. The defendant company was required, and it was its duty in law, to provide and use an idler of such kind and construction as was ordinarily deemed safe for the purposes for which it was used, and to keep the same in safe repair, as far as ordinary skill and diligence could do; and, if it did this, then it could not be held liable, and in such case, if you so find, let your verdict be for the defendant. If the idler used by the defendant company was defective in character and construction for the purposes for which it was used, or was in such condition of repair as to be unsafe and dangerous in its operation, and defendants' agent or manager, Sloan, or those standing in his stead, and vested with like powers and duties, knew of such defect and of such dangerous and unsafe condition, and, so knowing, continued to use such idler, and in its use and operation a portion of such idler was detached and thrown against the person of plaintiff, and injured him, then the defendant company would be liable, and in such case plaintiff should recover; or, if the idler was in a defective and dangerous condition, and the agent and manager, Sloan, and those charged with the duty of supervising and managing defendant's machinery, did not know of the same, but could have known of it or discovered such fact by the use of ordinary care and diligence, then the defendant would be liable, and, in case you so find, let your verdict be for the plaintiff, Denham; but if said idler was of such character and construction, and in such state of repair, as to render the same safe as far as ordinary skill and diligence could provide, ascertain, and determine, or if the same was, in fact, unsafe in construction or repair, but the defects were so hidden or concealed that those charged with the supervision of defendant's machinery did not know of the same, and could not have discovered the same by the exercise of ordinary care, skill, and diligence, then, in such case, the defendant company was not liable: and, if you so find, let your verdict be for the defendant, the Trinity County Lumber Company. The burden of proof is upon the plaintiff to establish the negligence or the facts constituting the liability of the defendant company by a preponderance of evidence; that is, by the greater weight and degree of credible evidence, and unless he has done so you will find for the defendant company." In addition to the foregoing general charge, at the instance of the defendant, the court gave the following special charge: "As to whether defendant was or not guilty of negligence, as alleged, in failing to secure the braces in the idler by proper fastenings, you are charged that the defendant is not an insurer of its employes against accidents from its machinery, nor held to guaranty the safety of its machinery, but is only required to exercise such care as an ordinarily prudent person would exercise under the same circumstances."

Appellant's second assignment of error, not relying on the first, is as follows: "The court erred in refusing to give special charge No. 2, asked by appellant; and the court erred in allowing the jury, over appellant's objections, to take with them in their retirement to consider of their verdict said special charge No. 2, which had been refused; and in this connection reference is made to appellant's bill of exception No. 3." The refused charge No. 2 is: "If the braces in question were fastened with 20-penny nails or spikes, and the fastenings were reasonably sufficient to hold the braces in the proper places, or if the fastenings were sufficient to guard against any accident therefrom which was probable and could have been reasonably foreseen, then you will find for the defendant." Upon the subject of the safety or want of safety of the idler and its fastenings the court's charge was sufficient. It provided for all questions to be determined by the jury, and included, but did not specifically refer to, the point made in the requested charge as to the fastenings with 20-penny nails. Under the court's charge, if the use of the nails or spikes were sufficient for safety,—reasonable safety,—the jury were at liberty to so find. The latter part of the requested charge as to anticipated accidents, in so far as the question was involved in the case, was covered by the court's charge. An accident that cannot be reasonably anticipated by either of the parties, and that occurs without fault of the person charged with it, is not actionable. If there is no fault or failure of duty on the part of the person to whom the occurrence is attributed, there is no wrong; or, as stated by Cooley, "the thing amiss — the injuria — is wanting." As charged by the court below: "The mere fact than an accident happens or an injury occurs is not, of itself, proof of negligence, and mill men are not...