Wilson Hydraulic Casing Pulling Mach. Co. v. James

• Decision Date: 01 April 1925
• Docket Number: (No. 2455.)
• Citation: 271 S.W. 424
• Parties: WILSON HYDRAULIC CASING PULLING MACH. CO. v. JAMES.
• Court: Texas Court of Appeals

Page 424

271 S.W. 424

WILSON HYDRAULIC CASING PULLING MACH. CO. v. JAMES.

(No. 2455.)

Court of Civil Appeals of Texas. Amarillo.

April 1, 1925.

Appeal from District Court, Wichita County; E. W. Napier, Judge.

Action by Lee James, by his next friend, J. A. James, against the Wilson Hydraulic Casing Pulling Machine Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. S. Ragsdale, of Burkburnett, for appellant.

Yarbrough & Tipton, of Electra, for appellee.

HALL, C. J.

J. A. James, as next friend of Lee James, a minor, 18 years of age, filed this suit against appellant company to recover damages resulting from personal injuries. It is alleged that plaintiff was employed by defendant company as a day laborer in its plant at Burkburnett at an average wage of at least $5 per day; that upon the date of his injury, March 13, 1923, he was working under the supervision and instructions of one Warfield, who at that time was the agent and foreman of defendant; that Warfield had instructed him to assist other employés in the work of loading a hydraulic jack on a truck; that plaintiff Warfield, and two other members of the crew were using what is known as a "cat line" or wire cable to pull the jack onto the truck; that when the jack was close to the edge of the truck plaintiff, under the instructions of Warfield, was assisting in pulling the jack onto the truck, and, while under the jack with his hands upon same assisting in pushing it onto the truck, the wire line, or cat line, slackened, slipped, broke, or in a manner otherwise unknown to the plaintiff gave way, and allowing the weight of the jack to come back on him causing his foot to slip from under him, resulting in plaintiff falling violently against the ground, breaking the bones in his hand and arm; that defendant owed plaintiff the duty of furnishing him a safe place to perform the work assigned to him, and the further duty of providing sufficient and suitable tools and machinery with which to work in a safe manner; that it was the duty of defendant to furnish a sufficient number of men in the crew in which plaintiff was working to perform the duties imposed upon him in a safe manner; that plaintiff was a minor. which fact was known to defendant, and defendant should have warned him of the dangers incident to the work. Plaintiff further alleges that defendant breached each and all of the duties which it owed him above enumerated, in that it failed, refused, and neglected to furnish a safe and suitable derrick, crane, or contrivance with which the jack could be raised upon the truck with safety and without plaintiff having to undertake to raise and push said jack onto said truck by hand, and in failing to furnish sufficient men to perform the work with safety; that the crew of men at that time was short at least three men; that the foreman, Warfield, allowed the cat line to slip or slacken, letting the weight of the jack down on plaintiff, causing plaintiff's feet to slip from under him and throw him to the ground, without giving plaintiff some warning, in order that plaintiff might be able to get out of the way and save himself from injury; that said negligence and breaches of duties by defendant were the proximate cause of the injury and damage suffered by plaintiff. The petition then sets out in detail the nature of the injury by reason of which he suffered great mental and physical pain and permanent injuries. He further alleges that his earning capacity has been decreased 25 per cent., and fixes the total amount of his damages, present and prospective, at $4,300. He further alleges that defendant had in its employ more than three men, and was eligible as a subscriber under the Workmen's Compensation Law of Texas (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), but had failed and refused to become such subscriber, and was not entitled to any of the defenses precluded by said act.

Defendant has two answers in the case; the last one filed September 10, 1923, and we must presume was the pleading upon which it went to trial. This answer contains no exceptions, either general or special. The defenses of assumed risk, contributory negligence, and the negligence of the plaintiff's fellow servant are set up.

A trial before the court, without a jury, resulted in a judgment for plaintiff in the sum of $1,189. The appellant insists that, because it was a subscriber under the Workmen's Compensation Act, plaintiff is not entitled to maintain this suit, but that appellee should have filed his claim with the Industrial Accident Board of the state. The failure to do so is not pleaded in abatement. The burden of pleading and proving that defendant was a subscriber under the act rested upon it. Having failed to discharge this burden, defendant could not rely upon the defenses of assumed...