Waxahachie Cotton Oil Co. v. McLain

• Decision Date: 16 November 1901
• Citation: 66 S.W. 226
• Parties: WAXAHACHIE COTTON OIL CO. v. McLAIN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 226

WAXAHACHIE COTTON OIL CO. v. McLAIN.¹

Court of Civil Appeals of Texas.

November 16, 1901.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by E. B. McLain against the Waxahachie Cotton Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Groce & Skinner and Baker, Botts, Baker & Lovett, for appellant. Templeton & Harding and Finley, Etheridge & Knight, for appellee.

TEMPLETON, J.

In January, 1900, the appellee, E. B. McLain, applied to one Shine, the superintendent of the appellant, the Waxahachie Cotton Oil Company, for work. McLain was then 19 years old. He had been raised in the country on a farm, and appears to have had the intelligence and experience common to youths so brought up. He had never worked in an oil mill, and was ignorant of the construction and operation of machinery. Shine at first employed him to work at odd jobs about the mill. After doing this work for several days, McLain applied to Shine for a job in the meal room, a vacancy having occurred in that department. He was thereupon employed in that capacity, and was told to report to one Williams, the foreman in the meal room, who would instruct him as to his duties. Shine had authority to employ and discharge hands, and knew of McLain's minority and inexperience, but he did not explain to McLain the character of the work he would be called upon to perform, or warn him of the danger attending its performance. McLain reported to Williams for duty, and was assigned to work trucking oil cake to the crusher, which was a machine for grinding cake. The crusher was fed by another employé by placing the cake into the hopper and pressing the same against the cylinders, which broke the cake into small pieces. The pieces fell into a receptacle under the crusher, where they were taken up by cups fastened onto a revolving belt, which passed from under the machine into an upright frame, the pieces of cake being in this way carried overhead, where they were subjected to other processes. The frame arose near the crusher, and was open on the side immediately opposite the crusher. Sometimes the elevator would choke up, and cease to perform the service for which it was intended. When this occurred, Williams would call upon any or all of the hands in the room, as he might see proper, to assist in unchoking the elevator. The evidence is conflicting as to whether McLain had ever assisted in this work prior to the time he was injured. On the 7th day of February, 1900, after McLain had been at work about a week, the elevator became clogged, and Williams called on all the hands in the room, five in number, including himself and McLain, to assist in putting it into operation again. Williams directed McLain to get up on the crusher, and put one foot on one of the cups fastened to the elevator belt, and press it down. McLain thereupon got up on the hopper of the crusher, and, standing with one foot on the rim of the hopper, put the other foot on one of the elevator cups and attempted to press the cup down, when he lost his balance and fell. The crusher had not been stopped, but it was not then being fed. McLain's foot slipped from the rim of the hopper into the hopper and between the cylinders, where it was so badly mangled as to necessitate amputation. There was a shoulder to the crusher, upon which Williams says he intended McLain to stand, but McLain says that he did not know the shoulder was there, as it was covered up with partially crushed cake. McLain was not warned by Williams or any one else of the hazard of the act he was doing when injured. He knew that the cylinders were in the crusher, and that they were in motion when he got up on the hopper. He knew that, if his foot slipped into the hopper, it would be caught between the cylinders, and badly hurt. He fed the crusher five or six hours during the week he worked in the meal room. The rest of the time he was engaged in trucking cake. A suit for damages brought by McLain against the company on account of his injuries resulted in a verdict and judgment in his favor for $6,000.

1. Under the first assignment of error appellant complains of the action of the trial court in charging the jury that the servant assumes the risks ordinarily incident to the business in which he is engaged, and in refusing a special charge which contained a statement of the rule that the master may conduct his business as he pleases, and, if the servant knows or ought to know how the business is actually carried on, he assumes the extraordinary hazards arising from the manner in which the business is conducted. The evidence herein shows that the elevator frequently became choked, and that it was the duty of the hands in the meal room, working under the direction of the foreman, Williams, to remove the obstruction, and put the elevator in operation again. It was not shown whether appellant had adopted any rules for doing the work, but it seems that it was done in such manner as the foreman saw fit to direct, and that he had authority to act as he pleased in this regard. It does not appear that he had any rule in respect to the particular work appellee was doing when injured. It was not shown that on any other occasion an employé in the meal room was required to move the elevator belt with his foot. The court did not submit any theory of the case authorizing the jury to consider the failure of appellant to have its business conducted according to safe rules as an element of liability. It was unnecessary, in this state of the case, to give the special charge. If appellee knew, or should have known, the peril of the act he was called upon to perform, he assumed the risk, and could not recover. This rule was given in charge to the jury, and, under the instruction, it was immaterial whether appellant's business was usually carried on according to safe rules or in a more hazardous manner. The jury was informed by the charge that in any case appellee assumed the actual risks incident to his employment of which he knew or ought to have known. Appellant's method of doing business was not involved in the decision of the case. If a recovery had been sought on the ground that appellee's injury was occasioned by the failure of appellant to have safe rules for the conduct of its business, and that issue has been submitted to the jury, then the rule invoked would have been pertinent. Such is not the case, however, and the trial court did not err in refusing to give the special charge.

2. The court charged the jury that the servant did not assume any risk arising from the negligence of the master, and, in submitting appellee's theory of the case, further instructed the jury that if appellee was ordered to get on the crusher while it was running, and his position was dangerous, and he was not warned of the danger, and if the failure to warn, and the giving of the order, and the failure to stop the machinery was negligence on the part of appellant, then the appellee was (other facts concurring) entitled to recover. Appellant requested a special charge, which was refused, that if, in the ordinary use of the elevator, it would become clogged and temporarily...