Vilter Mfg. Co. v. Kent

• Decision Date: 13 November 1907
• Citation: 105 S.W. 525
• Parties: VILTER MFG. CO. v. KENT.
• Court: Texas Court of Appeals

105 S.W. 525

VILTER MFG. CO. v. KENT.

Court of Civil Appeals of Texas.

November 13, 1907.

Appeal from McLennan County Court; J. W. Baker, Judge.

Action by John B. Kent against the Vilter Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

O. L. Stribling and Lassiter & Harrison, for appellant. Moore & Warren, for appellee.

RICE, J.

This was a suit by appellee against appellant to recover damages for personal injuries alleged to have been suffered while in the employ of appellant. It was alleged by appellee that he was directed by one of defendant's agents while at work to take hold of a chisel which had been driven by another employé into a piece of timber for the purpose of prizing up the timber, and had been told by said employé to pull down on the chisel, which he did. The negligence alleged was in respect to the way in which the chisel had been driven into the timber, in that it was insecurely fastened therein, and that, when he pulled down on it, it flew out, causing him to fall about 12 feet, inflicting injuries which were alleged to be permanent. Appellant answered by general denial, assumed risk, contributory negligence, and that, if the chisel was negligently driven into the wood, this was the work of a fellow servant of appellee, for whose acts appellant was not responsible. The trial resulted in a verdict and judgment in favor of appellee in the sum of $800, from which this appeal is prosecuted.

Appellant's seventh assignment of error is addressed to supposed error in special charge No. 1 given to the jury at the instance of appellee, and which is as follows: "You are instructed that it was the duty of the defendant to furnish the plaintiff as its servant and employé with reasonably safe appliances to work with in any work he was called upon by defendant to perform; and, as a matter of law, plaintiff had the right to assume, when he was directed to pull or push down upon the chisel fastened to the piece of timber that was to be raised, that said chisel was securely fastened to said timber, sufficiently so, at least, to accomplish the purpose intended, for which plaintiff was so directed to pull or push down on same, and plaintiff was not required to put said appliance to any test before pulling or pushing down on same to determine whether the said chisel was securely fastened to said timber, unless you shall find from the evidence that the insecurity of the fastening of said chisel was apparent to plaintiff when he was called upon to pull or push down upon same from the manner it was driven into said timber was otherwise observable, so as to put plaintiff on his guard, and to warn him of such probable insecurity of said fastening, and, unless you do so find that plaintiff was so warned or cautioned, he was not guilty of assumed risk in pulling or pushing down upon said chisel without first testing the same before doing so." It will be noticed that said special charge made it the absolute duty of appellant to furnish the plaintiff as its servant and employé with reasonably safe appliances to work with in any work he was called upon by defendant to perform, etc....