Werner v. Trautwein

• Decision Date: 07 February 1901
• Citation: 61 S.W. 447
• Parties: WERNER v. TRAUTWEIN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

61 S.W. 447

WERNER v. TRAUTWEIN et al.¹

Court of Civil Appeals of Texas.

February 7, 1901.

Appeal from district court, Dewitt county; James C. Wilson, Judge.

Action by Charles Werner against Trautwein & Wolters. From a judgment in favor of the defendants, plaintiff appeals. Affirmed.

Kleberg, Grimes & Baker, L. C. Grothaus, and Geo. C. Altgelt, for appellant. Patton & Ellis and A. B. Davidson, for appellees.

GILL, J.

This action was brought by the appellant, Charles Werner, against the partnership of Trautwein & Wolters, appellees, to recover damages for personal injuries inflicted upon his minor son, Hans Werner, in a cotton gin owned and operated by appellees. A trial by jury resulted in a verdict and judgment for appellees. Plaintiff alleges that on or about August 22, 1898, defendants, by parol contract with plaintiff, engaged his (plaintiff's) minor son, Hans Werner, to count, mark, weigh, assort, and separate the bales of cotton ginned at defendants' round bale press; that it was understood between plaintiff and defendants that Hans Werner was at no time and under no circumstances to be employed to work at or about gin stands or other dangerous machinery, said Hans being inexperienced, and without training, and being a minor; that on or about October 14, 1898, defendants, in violation of said contract, and fully cognizant of the minority and inexperience of said Hans Werner, without the consent of plaintiff, and without the knowledge of plaintiff, by and through E. Gabitsch, a duly-authorized agent of defendants, who was acting within the scope of his apparent authority, ordered and directed the said Hans Werner to clean a gin stand and feed box in defendants' gin; that said order was given by said Gabitsch while he was acting within the apparent scope of his authority, and was given to said Hans in the presence and hearing of E. Wolters, one of the defendants, and was given while the machinery was in full operation; that Hans complied with said direction and order, and in the presence of said Wolters proceeded to do the labor directed; that said labor was performed in the presence and under the direction of said Wolters, and of his said agent, Gabitsch, and was exceedingly dangerous, and that said Hans did not know its dangers, and that he was not warned as to such dangers by said Wolters, or any one else; that said Wolters knew said Hans was inexperienced, but gave him no caution, nor did he or his agent direct him (said Werner) how to perform said work without injury; that while so acting under such direction and control of defendants, and performing the labor requested of him the left hand and arm of said Hans was caught in the gin saws, and so crushed, cut, and wounded that it had to be amputated; that plaintiff had the services of skillful physicians, but amputation was necessary; that such injuries were occasioned by the act of defendants and their agents in putting said Hans to perform such dangerous work, contrary to said contract, and without giving him any warning or caution as to the dangers attending same, and directing him how to avoid such dangers. Defendants answered by general denial, plea of contributory negligence, and averred that Hans Werner was at the time of the accident a mere volunteer, and was not directed to do the work by any one authorized so to do. The firm of Trautwein & Wolters was composed of William Trautwein, Louis Trautwein, and Edmond Wolters, and they were engaged in operating a cotton gin and cotton presses or baling apparatus in connection therewith. All the cotton gins were in the same building and on the same floor, but those connected with the round bale presses were on the opposite side of the room from those connected with the square bale presses. On the occasion in question one Gabitsch was in charge of four square bale gins, and it was his duty to attend to them, keep them in running order and proper repair, and to prevent injury to them, and in doing these things to use his own judgment and discretion; but it was not shown that he was authorized to hire assistance, or to call any one to his assistance, and he had never done so prior to the time in question. On the 22d day of August, 1898, Hans Werner was hired by the firm to mark, weigh, count, assort, and separate the bales of cotton ginned and pressed at the round bale press of defendants. The contract of hire was made with appellant, the father of the minor, the latter being at that time about 16 years old. There was evidence tending to show that by the contract of hire defendants agreed not to put Hans to work about dangerous machinery, and that appellant told Wolters, the partner who made the contract of employment, that Hans knew nothing about gins, but would soon learn; but upon this point the evidence was conflicting. in pursuance of the contract of hire, Wolters, who was in charge and had actual control and management of the ginning plant, and gave it his daily personal superintendence, placed Hans at work at the round bale press to mark, weigh, count, assort, and separate the bales coming from the last-named press. He worked in this way about two months prior to the accident, and during that period was never at any time directed by Wolters or any other person to do any other kind of work. At times when there was no work of that kind to do, he and other employés about the plant were in the habit of strolling over the building. On the occasion in question he was not on duty, and was standing or walking along the space between the round bale gin stands and the square bale gin stands. His master, Wolters, who was giving the business his personal attention, came upstairs on the floor where Hans was, and near to him, when one of the square bale gins became "choked," and Gabitsch, who was in charge of it, called to him to assist him in cleaning it. This was a very dangerous task for one who did not understand the proper way to do it. He promptly responded to the call, and he and Gabitsch undertook to clean it. In doing so, Hans got his hand caught in the gin saws, and it was so injured as to necessitate amputation. It was shown beyond dispute that Wolters was within a few feet of Gabitsch and of...