W. E. Grace Mfg. Co. v. Arp, 15364

• Decision Date: 14 February 1958
• Docket Number: No. 15364,15364
• Parties: W. E. GRACE MFG. CO., Appellant, v. George Washington ARP, Appellee.
• Court: Texas Court of Appeals

Page 278

311 S.W.2d 278

W. E. GRACE MFG. CO., Appellant, v. George Washington ARP, Appellee.

No. 15364.

Court of Civil Appeals of Texas, Dallas.

Feb. 14, 1958.

Rehearing Denied March 14, 1958.

Charles H. Slaughter and Louis Wilson, Dallas, for appellant.

Akin & Vial, Henry D. Akin, Jr., Dallas, for appellee.

CRAMER, Justice.

'George Washington Arp filed this suit in the 101st Judicial District Court, Dallas County, Texas, seeking a recovery of damages for personal injuries sustained by him while in the employ of appellant W. E. Grace Manufacturing Company, on or about April 25, 1956. The case was tried under a stipulation that W. E. Grace Manufacturing Company was at the time of the injury to plaintiff engaged in a business not excluded from the provisions of the Workmen's Compensation Act of the State of Texas; that the Company had in its employ on the date of the injury more than three employees; and that the Company did not have in force and effect on the date of the injury a policy of Workmen's compensation insurance covering its employees and in particular covering George Washington Arp.' The case was submitted to the jury on special issues to which the jury found (1) on the occasion in question the Company, its agents, servants and employees failed to instruct Arp in the use of a Baker vertical boring machine prior to the accident; (1-A) such failure was negligence; (1-B) was a proximate cause of the accident in question; (2) the Company, its agents, etc. failed to furnish Arp with suitable tools with which to remove the steel shavings from under the drill on the boring machine; (2-A) which was negligence; (2-B) and a proximate cause of the accident; (3) the Company did not fail to equip such machine with safety devices to stop the downward movement of the drill after it completed boring the bushing; (4) the Company failed to equip the boring machine with safety shields to protect Arp's hands from the drill, but (4-A) such failure was not negligence; (5) the Company failed to inspect the boring machine for mechanical defects; which was (5-A) negligence and (5-B) proximate cause of the accident; (6) Arp's placing his fingers in the machine (6-A) was negligence but (6-B) not the sole proximate cause of his injuries; (7) Arp was damaged by the accident in the amount of $5,035.

On the verdict the trial court entered judgment for $5,035 plus interest, costs, etc., and the manufacturing company has duly perfected this appeal.

The points are briefed in groups and we will so consider them.

Points 1-6 and 28 are briefed together and assert error because (1) as a matter of law there was no evidence to show a duty on the Company to instruct Arp in the use of the boring machine and the trial court therefore erred in submitting special issue No. 1; (2) in submitting issue 1-A because such failure was not 'a responsible care or producing cause chargeable to it in the physical order or sequence of events leading up to the injury'; (3) Arp was familiar with the use and operation of the punch press and drill press as shown by his statement in his application for employment and the Company was not advised to the contrary; therefore there was no liability on the part of the Company; (4) there was no evidence of Arp's inexperience and he being an adult the Company could assume by his acceptance of such employment that he was acquainted with the ordinary risks incident thereto, and no special instructions were necessary to operate the machine; (5) the answer to issue 1-A being of a collateral and secondary nature, it did not show an active or procuring cause in the line of causation of which the event complained of was a natural and probable sequence; (6) that the Company failed to instruct Arp in the use of the machine prior to the accident was not supported by the findings of the jury in answer to special issue No. 1-B; nor was the same a substantial factor in bringing about the resulting injuries complained of and the court therefore erred in returning judgment based thereon; (28) there was no evidence to support the finding to issue 1, and issue 1 was immaterial after the jury's answer to issue 3.

Appellee counters that (1) the trial court correctly submitted issues 1, 1-A and 1-B since they were raised by both pleadings and evidence; (2) issues 1, 1-A and 1-B were supported by the evidence; (3) the trial court without considering other issues of negligence could have correctly entered judgment for appellee Arp based on answers to issues 1, 1-A and 1-B and the damage issue. These points require an examination of the evidence to ascertain if there is any evidence to support the issues involved. Arp's application shows his age to be 32 years; his last employment in 1954-1956 was as a carpenter and before that he was self-employed for some ten years; that he is best on the punch press, drill press, and metal shear; that his physical defects are 'no vision in left eye'; his duties when working for Continental Gin Company were to bring materials to the man who operated the shear. He further testified that he had not attended a trade school and his previous work was mostly construction on residence houses, using carpenter's tools; that he was not to work on a boring machine; that he told his foreman he did not understand its operation and the foreman then went through the process of setting up and drilling out one bushing while he (Arp) watched him; that was all the instruction he received. He stated that he had no knowledge of any depth stop on the machine and he was given no instruction on how to use it. He was injured about 9:00 A.M. when the cutting tool struck his finger while he was attempting to keep a shaving from being picked up by the cutting tool and working back up the drill into a bushing that was being bored out, which would have caused the tool to lock to the bushing and would have allowed the bushing to turn within the jaws of the die; that in the short time he had been working on the machine he had to do this many times to remove long shavings that were beginning to follow the drill; that he was not given any instructions at all on what to do when the shavings started to work back up the drill and go into the bushing; he had not encountered this on the drilling machine because in drilling the shavings came out the top, but in boring the shavings came out below the tool.

George Alton Smith, of Arlington State College, an expert called in behalf of plaintiff, testified that a man starting to work at a Baker upright boring machine should be instructed as to the precautions to be taken in keeping the locating surfaces, which would be your jaws, or your clamps, clear of shavings so the bushing would be located properly. Mr. Jim Crawley testified that it was his duty to train the men in the operation of the machines, but that he did not know how much experience the plaintiff had had and he did not check to find out. He further testified that he did not instruct the plaintiff as to the use of the depth stop. Mr. Grace himself testified that he knew that the plaintiff's machine shop experience was limited and that it was Crawley's job to instruct him.

The assistant to the owner of the shop, a witness for the Company, on cross-examination testified it would take an hour to instruct a man in the use of such a machine, but if he was mechanically inclined and intelligent he could be given general instructions in ten minutes; that not telling a man how to set the stop would give some sort of peril to the operator.

Ordinarily there is no duty on the part of an employer to instruct an employee who is experienced in the line of work to which he is assigned, or in the use of a machine with which he is familiar. But in the case of an employee who is known by the employer to be inexperienced in the type of work to which he is assigned, or in the use of a dangerous machine, there is a duty on the part of the employer to instruct the employee. 29 Tex.Jur. 233. In this case the employer himself testified that he knew the employee was of a limited machine shop experience. We think the testimony here supported the submission of the issues and the answers of the jury. Points 1 to 6 and 28 are overruled.

Points 7 and 8 assert issue 2 is on the weight of the evidence and the jury's answer to issue 2 conflicts with their answers to issues 3, 4-A and 6. Issue 2 was: 'Do you find from a preponderance of the evidence that at the time, place and occasion in question defendant, and its agents, servants, and employees failed to furnish plaintiff with suitable tools with which to remove the steel shavings from under the drill of the Baker Vertical Boring Machine in question?'

We see no conflict between the finding that the Company did fail to furnish suitable tools to remove steel shavings from under the drill and the finding that the Company...