Waterman Lumber Co. v. Beatty

• Decision Date: 19 June 1918
• Docket Number: (No. 1995.)
• Citation: 204 S.W. 448
• Parties: WATERMAN LUMBER CO. v. BEATTY.
• Court: Texas Court of Appeals

204 S.W. 448

WATERMAN LUMBER CO. v. BEATTY.

(No. 1995.)

Court of Civil Appeals of Texas. Texarkana.

June 19, 1918.

Rehearing Denied June 27, 1918.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Action by Dave Beatty against the Waterman Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The action is for damages for personal injuries. The negligence alleged is in employing an inexperienced youth under 15 years of age to do and perform the work of a railway brakeman, and to do and perform the work required of the plaintiff, and in not warning him of the danger incident to the work. The defendant answered that the plaintiff was more than 15 years old, and was not employed about the machinery in any mill or factory or manufacturing establishment using dangerous machinery. Further, that the defendant had accepted and was operating under the Employers' Liability Act of Texas and had insured its employés against loss and injury in the Home Life & Accident Company of Arkansas and had paid all premiums and given notice of the fact to the plaintiff; that the plaintiff had accepted and agreed to work under the Employers' Liability Act, and had given no notice of his intention not to be bound by the said act and compensation. The plaintiff by supplemental petition replied denying that the Workmen's Compensation Act applied because the plaintiff was employed in violation of the law, and that the insurance policy does not cover a case of unlawful employment. The jury returned a verdict in favor of the plaintiff.

The court's charge authorized a recovery in favor of the plaintiff only upon the finding that the plaintiff was under 15 years of age and employed in violation of the child labor law. The Waterman Lumber Company is a lumber corporation engaged in the manufacturing of lumber and has its headquarters in the town of Blocker, about 10 miles southeast of Marshall on the Marshall & East Texas Railroad. The railroad at that point runs about east and west, and the Waterman Lumber Company's mill is stationed at Blocker. The Waterman Lumber Company also owns a tram railroad that joins onto the Marshall & East Texas Railroad about a mile east of the town of Blocker and runs south to another mill owned by the Waterman Lumber Company, known as the Horton mill, and thence 10 or 12 miles into the woods down Sabine river. It also owns another tram that joins onto the Marshall & East Texas Railroad a short distance west of Blocker station and runs south into the woods. These are tram roads owned by the Waterman Lumber Company and used to haul logs from the woods into the mill and to haul lumber from the Horton mill up to the Blocker station. In going and returning to work the hands would usually ride the trains. Dave Beatty was a minor, and there was a question in the case whether he was under 15 or over 15 when he was injured. There is involved in the verdict of the jury the finding that the boy was under 15 years of age. There being evidence to support the finding, it is here adopted. He was injured about the 9th of May, 1917. Dave Beatty was primarily employed by the lumber company to perform the work of what was familiarly known as "riding the mule," and his service was as follows: The lumber company owned some logging cars, and on one of these cars was a machine operated by steam, and attached to this machine was a drum, on which was wound a long rope. Beatty would take his mule and hitch to the end of this rope and ride the mule out into the woods where a log had been prepared, and another man would then hitch the end of the wire rope onto the log with clamps or tongs. Wayne Phillips then, by operating the machine on the car, would wind the rope onto the drum and drag the log to the side of the track. Then Beatty would hitch his mule to the end of the wire rope with the clamps and pull it out to the next log to be hauled in. He was not injured while performing this work. It was sometimes required of David Beatty, as a part of his employment, to do some other work as his foreman ordered and to aid the men in laying down the iron rails on the tram railroad that runs from the Marshall & East Texas road out into the woods. His duty generally in performing this work was to carry water to the hands, distribute spikes and fish bars along the track where the rails were being placed.

David Beatty with his father lived at Horton about 9 or 10 miles out from Blocker station. On the morning he was injured, they were going to come from Horton on the tram road north to the Marshall & East Texas Railroad east of Blocker, and then come on the Marshall & East Texas to the point west of Blocker; then go south on that tram with the purpose of laying iron at the south end of that tram road. David Beatty and the other workmen left Horton on the hand car, operated by hand, and on the way up to the north end of the tram, before they got to the Marshall & East Texas road, the morning being quite cool, David Beatty left the hand car and went to the Shay engine, which was proceeding in front of him on the road going up to Blocker also. He went and got on the Shay engine, and in a few minutes they...