Williams v. Kirby Lumber Co.

• Citation: 136 S.W. 1182
• Parties: WILLIAMS v. KIRBY LUMBER CO.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 29 March 1911
• Court: Texas Court of Appeals

136 S.W. 1182

WILLIAMS v. KIRBY LUMBER CO.^†

Court of Civil Appeals of Texas.

March 29, 1911.

Rehearing Denied May 4, 1911.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Action by James J. Williams against the Kirby Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Blain & Howth and M. G. Adams, for appellant. Oliver J. Todd and Andrews, Ball & Streetman, for appellee.

PLEASANTS, C. J.

This is a suit by appellant against appellee to recover damages for personal injuries alleged to have been caused by the negligence of appellee.

At the time of his injuries, plaintiff was working for defendant as block setter on the carriage of the saw in defendant's sawmill at Roganville, Tex. His duties required him to ride the carriage between the two doggers thereon, and by means of a lever to regulate the thickness of the lumber to be sawed in accordance with the orders of the sawyer. The sawyer ran the carriage by operating a lever which controlled the steam used as a motive power, and which regulated the speed of the carriage. The track on which the carriage was operated was about sixty feet long and five or six feet wide. The carriage was operated swiftly back and forth on the track by means of what is known as a "shotgun feed." Steam was used as a motive power. The feeding of the steam into the gun was regulated by means of an upright lever. This lever was located about midway of the carriage track, and two or three feet to one side. To operate the carriage on the track, the sawyer stood, holding this lever, with his face to the carriage. By pulling the lever back and forth, the sawyer would let in as much or as little steam as he wanted, could run the carriage at any speed desired, and could start and stop it, either slowly or suddenly. While the carriage was moving, either forward or backward, at full speed, it could be suddenly stopped and immediately shot in the opposite direction. On the side of the carriage opposite where the sawyer stood while operating his lever was an upright exhaust pipe, situated to the sawyer's left, about a foot from the carriage. This pipe was 10 or 15 feet towards the saw from a point opposite the sawyer's station. About the same distance to the right of the sawyer, and on the opposite side of the track, was what is called the stationary board, which was an upright piece of lumber fixed close to or against the track.

The pleading and evidence of plaintiff showed substantially the following facts: A crooked log was being sawed, and the sawyer, Jim Bailey, for some reason, failed to run the line all the way through the log. He started the carriage back under a full head of steam, as if he intended to go all the way to the back end; but by the time he had brought his carriage back from four to six feet from the front end he discovered that he had not cut the line all the way through, and that a slab was left on the log; whereupon he suddenly reversed the carriage, made an immediate stop, and instantly shot it forward under a full head of steam and finished the line. This sudden stopping of the carriage while on its backward course, and shooting it forward again, threw plaintiff off his balance. As the carriage was shot forward, plaintiff was out of balance, stumbling and falling. While in this falling or overbalanced position, the motion of the carriage brought him in contact with the exhaust pipe, which knocked him down under the carriage, his face down and his left leg hanging off the side of the carriage. While he was in this position, the sawyer reversed the carriage and sent it rapidly toward the rear of the track. By this movement of the carriage, plaintiff's left leg was brought in violent contact with the stationary board, and was so badly broken and mangled as to require its amputation.

Plaintiff alleged that Jim Bailey was the sawyer, and that he was foreman of the carriage crew of which plaintiff was a member, and that he had the power and authority to direct and control, and to hire and discharge, plaintiff and the other members of the carriage crew, and that he was therefore defendant's vice principal. That the defendant was guilty of negligence, in that its vice principal, Jim Bailey, reversed his carriage suddenly and violently while on its backward course, and shot same forward under a full head of steam to complete the cutting of the line. That defendant was further guilty of negligence, in that its vice principal, Jim Bailey, failed and omitted to see plaintiff in his peril, in that plaintiff was thrown down on the carriage at the forward end of the track, and the sawyer thereafter brought the carriage back toward the other end of the track, until plaintiff's leg came in contract with the stationary board. That defendant was guilty of negligence, in that its vice principal, Jim Bailey, saw plaintiff in his peril and failed to use ordinary care to stop the carriage. That the defendant was further negligent in employing and retaining in its employ said Jim Bailey as its sawyer, in that he was incompetent by reason of his irritable, excitable, and nervous temperament.

The defendant's answer contains general and special exceptions, general and special denials, and pleas of assumed risk, contributory negligence, and negligence of a fellow servant. The trial in the court below was with a jury, and resulted in a verdict and judgment in favor of defendant.

The only issue of negligence on the part of the defendant submitted to the jury by the charge of the court was its employing and retaining in its employment an incompetent sawyer when it knew, or by the use of ordinary care must have known, of his incompetence.

Plaintiff requested the court to submit to the jury the question of whether the sawyer, Jim Bailey, was a vice principal of defendant, authorized to direct and control plaintiff in his work and to hire and discharge him, and to instruct the jury that, in event they found that Bailey was such vice principal, and that plaintiff was injured by Bailey's negligence, as alleged in the petition, they should find for plaintiff, unless they found for defendant upon the issue of assumed risk or contributory negligence as submitted in the charge.

Plaintiff also requested the court to submit to the jury the issue of discovered peril, and the negligent failure of Bailey, after he saw that plaintiff had fallen upon the carriage and realized his imminent danger of injury, to use proper care to prevent his injury. Under appropriate assignments of error appellant complains of the refusal of the court to submit these issues to the jury. We think both issues were raised by the evidence, and, both being grounds of recovery alleged in the petition, they should have been submitted to the jury.

Upon the issue of whether the sawyer, Jim Bailey, was a vice principal of defendant the following testimony was adduced: James J. Williams, plaintiff, testified: "Jim Bailey hired me to go to work. He first spoke to me about going to work there. He told me what they paid. He controlled me there and directed me in doing my work; he was my foreman there. Besides directing the crew and hiring them, Mr. Bailey operated the carriage; he controlled the steam and lever that operated the carriage. I saw him put Withers and Truett off the carriage."

On cross-examination he testified: "I testified on direct examination that Jim Bailey hired me. The mill foreman came around about the time Bailey was changing saws, and Bailey introduced me to him; that is, Mr. Young, I guess Mr. Young can fire anybody in the mill that he wanted to. Bailey told Young, `This is the fellow that I wrote for,' and Mr. Young said, `Yes.' I had a recommendation, and Young, the mill foreman, took it. I do not know what conversation Bailey had with the mill foreman, and whether Young told him to write to me. I do not know whether Bailey wrote the letter to me at Young's request or not. Young and I did not have any talk about what they were paying there. Bailey told me that he had been paying $2, but that he would give me $2.25."

Arden Wright testified: "In the Kirby Lumber Company mill at Rogan, Tex., at the time of the injuries to Williams and several months previous thereto, Bailey had exercised the power of discharging members of the carriage crew. Eula Wills was discharged by Bailey. At the time of the injuries to Williams and several months previous thereto, Bailey had exercised the power and authority to hire members of the carriage crew. Jim Williams was hired by Bailey; Eula Wills was hired by Bailey on trial. I have taken men to him for employment, and he said to them that if they were good doggers he would take them, and put them on the carriage. He tried men I took to him. He tried Eula Wills; he put him on the carriage for trial. Bailey did not send this man Jim Young either to hire or discharge him. All the specific instances I remember of where Bailey either hired or discharged members of the carriage...