# Gamer Co. v. Gammage

> Court of Appeals of Texas · November 1, 1913 · 162 S.W. 980

URL: https://www.frixlaw.com/law-library/cases/9833992

## Case

- **Full name:** Gamer Co. v. Gammage.
- **Court:** Court of Appeals of Texas
- **Decided:** November 1, 1913
- **Citations:** 162 S.W. 980; 1913 Tex. App. LEXIS 503
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Hendricks
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9833992

## Opinion text

On Motion for Rehearing.
Appellee’s counsel in this cause have filed an extensive and able argument on motion for rehearing, contending that we erred, in our original disposition of this cause, in reversing and rendering same in favor of appellant. Appellee, is insisting that he did not rely upon the doctrine of res ipsa loqui-tur, “as the court seems to assume in its opinion, but appellee contended, and now contends, that there is an abundance of evidence of appellant’s negligence to warrant the trial court submitting the issue to the jury,” further saying, however, that if they were relying upon such a doctrine, the issue of negligence should have been submitted to the jury, and the jury’s verdict should be sustained by this court. It is noted that in the petition in this cause, upon which the appellee went to trial, he specifically alleged, three defects of the machinery operated by Gammage, either of which existed as negligence of the appellant, causing the injury. Chief Justice Wilson, in the ease of Gulf Pipe Line Go. v. Brymer, 124 S. W. 1009 , said; “We are of the opinion that that maxim [res ipsa loquitur] was not applicable, because in his pleadings appellee charged as the negligence he relied upon specific acts and omissions on the part of appellant.” The case of Price v. Ry. Co., 220 Mo. 435 , 119 S. W. 938 , 132 Am. St. Rep. 588 , by the Supreme Court of Missouri, and also cited by Chief Justice Wilson, is one where the pleading of the plaintiff was of specific acts of negligence, and that court said a case of that character “rises to the dignity of an admission of record that she [the plaintiff] knew the cause of the accident.” Justice Neill said in the ease of Brewing Company v. Willie, 52 Tex. Civ. App. 559 , 114 S. W. 191 : “This is not a case where the doctrine of res ipsa loquitur applies; for the plaintiff, having specifically alleged the acts of defendant’s negligence, cannot make out a prima facie case without direct proof of actionable negligence, but he must prove the acts of negligence which he averred, and that such negligence was the proximate cause of his injury.” Also, see, Stackpole v. Wray, 77 App. Div. 310 , 77 N. Y. Supp. 634 ; Kennedy v. Ry. Co., 128 Mo. App. 297 , 107 S. W. 17 .
We believe appellee, having pleaded three hypothetical defects in the machinery, either of which was alleged as the cause of the injury to him in this instance, he was confined to proof of those specific defects, and those only were the ones appellant would be required to meet with reference to his negligence. We decided this case upon what we conceived to be a universal and simple rule of law; that is, “there must be evidence fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been discovered before the accident.” Mo. Pac. Ry. Co. v. Dorr, 73 Kan. 489 , 85 Pac. 534 . As a general proposition, of course, this doctrine is undisputed, and is authoritatively recognized by the courts of our state, as indicated by the following cases: Ry. Co. v. Edmunds, 26 S. W. 633 ; Texas Pacific Railway Co. v. Wisenor, 66 Tex. 674 , 2 S. W. 667 ; Gulf, etc., Ry. Co. v. Silliphant, 70 Tex. 623 , 8 S. W. 673 ; Denham v. Trinity Lumber Co., 73 Tex. 78 -83, 11 S. W. 151 ; San Antonio, etc., Ry. Co. v. Hahl, 83 S. W. 27 ; Eddy v. Prentice, 8 Tex. Civ. App. 58 , 27 S. W. 1063 ; Ry. Co. v. McMamara, 59 Tex. 255 -259.
The Supreme Court of Kansas, in the case of Ry. Co. v. Dorr, supra, as reflected by the syllabus in the opinion, said that: “Before an employé of a railroad company can recover from the company for injuries resulting from a defective appliance on a locomotive, of which defect the railroad company had no-actual knowledge, he must show that it had existed for such length of time that the company should have discovered and remedied it.” Unless in cases where the attending circumstances and conditions are such that prima facie negligence by the assertion and proof of those circumstances is presumed, as in the rule of res ipsa loquitur, knowledge as an element of liability, where the servant sues the master, is as elementary in the jurisprudence of this country as any other principle of law.
As Labatt put it in another form (volume 3, Master & Servant [2d Ed.] § 1032): “Viewed as embodying a principle which is exculpatory in its operation, the rule is sometimes stated in the form that the master is not liable for an injury caused by defects, unless he had actual knowledge of such defects, or they had existed for such length of time that knowledge might be inferred” (citing numerous eases). While it is true that there are some cases which are rather inclined to the proposition that, where inspection is not shown, it is an element of negligence — loose language without any regard whatever for the rule with reference to the burden of proof upon plaintiff, and jumping the rule that in order to constitute liability where actual knowledge is not proven, defendant by the exercise of ordinary care could have found the defect, and without any regard for the proposition that in order to show inspection as an element of negligence, the plaintiff should show something to inspect before its invocation, some condition or suggestive circumstance that inspection could grasp. “Notice or knowledge cannot be presumed unless the duration and character of the defect were such as should *986 have been .discovered by tbe railroad company by tbe exercise of ordinary care and diligence.” Ry. Co. v. Dorr, supra. If tbe ■ attending circumstances are sucb that tbe defect induces a reasonable belief that it existed for some length of time prior to tbe happening of the accident, inspection and tbe duty of ordinary care to discover necessarily applies. Tbe books are full of cases where tbe period which elapsed between tbe accident and when tbe instrumentality was proved to have been in a very unsafe condition was very brief. Tbe courts have deemed themselves warranted in saying as a matter of law that notice could not be imputed to tbe master. “All that can, with safety, be affirmed in this connection is -that tbe longer the period tbe more conclusive will tbe finding of a jury be deemed.” Labatt, same section, same volume, p. 2733. Appellee is evidently impressed with this rule for tbe reason that he placed an expert witness upon tbe stand for tbe purpose of eliciting testimony from him in substance that proper inspection, by the exercise of reasonable diligence, would have disclosed either of the three defects mentioned by him which could have caused tbe accident, notwithstanding that tbe attending circumstances in this case were not sucb as to indicate any length of time whatever prior to tbe time of tbe accident that either of tbe three defects mentioned by him had existed, no suggestive circumstance of tbe condition of .the machinery, except tbe drop of tbe cutter, that a defect did exist upon which bis expert testimony could operate, with tbe countervailing testimony in tbe record pointing strongly to an unexpected and sudden occurrence, and as to make bis conclusion of law, compounded with one of fact, to our minds absolutely valueless.
White, in bis work on Personal Injuries on Railroads, vol. 1, § 79, says: “It being not only essential to show tbe defect from which tbe injuries resulted, but also tbe fact that defendant bad knowledge thereof a sufficient length of time to have enabled him, in tbe exercise of due care, to have repaired it, or that it bad existed for a length of time sufficient for him to have acquired sucb knowledge in tbe exercise of ordinary care, these facts must also appear before a prima facie case is established by tbe plaintiff. But tbe law will imply notice from a defect that has existed a sufficient length of time for tbe employer, in tbe exercise of ordinary care, to have discovered tbe defect; hence it is not essential in every case to prove actual notice, provided facts are shown from which notice can be legally inferred.”
Appellee calls to our attention tbe case of Pope v. Railway Company, 155 S. W. 1175 , decided by Chief Justice Brown, tbe case of Gulf, Colorado & Santa Fé v. Larkin, 98 Tex. 225 , 82 S. W. 1026 , 1 L. R. A. (N. S.) 944, decided by Justice Denman of the Supreme Court, also tbe case of Gulf, Colorado & Santa Fé Ry. Co. v. Wood, 63 S. W. 164 , and a leading case in this state decided by Justice Brown (McCray v. Ry. Co., 89 Tex. 168 , 34 S. W. 95 ). In reading the opinion in tbe Pope Case, supra, which arose on account of a sliver flying from the bead of a battered chisel, striking Pope in tbe eye, we find one of the two questions, determining tbe rights and liabilities of tbe parties, as follows: “Was tbe defendant guilty of negligence in furnishing to its employés tbe chisel in its battered condition and in tbe manner it did by placing it in tbe box containing other chisels for tbe employés to select from?” Tbe court said that this was one of tbe questions of fact which should have been submitted to tbe jury, which tbe trial court did not do. • Tbe Drake Case, decided by Justice Denman, was one with reference to tbe furnishing of a simple book by tbe .railroad company, to be used by plaintiff in loading rails upon cars, which hook was defective, and in which case Justice Denman draws tbe distinction between tbe principle enunciated there and the one declared in tbe case of Railway Company v. Larkin, where tbe matter of inspection of a simple appliance — that is a lantern — under the control of the employé, was involved. Neither of those cases, properly sounded, applies here.
Tbe leading case of McCray v. Ry. Co., by Justice Brown, of tbe Supreme Court, is squarely on tbe doctrine of res ipsa loquitur. A steel rail fell from a flat car, one end of which struck tbe ground and tbe other resting on tbe side of the car, “swept tbe whole north side of tbe train,” striking tbe brakeman, the husband of the plaintiff, and killing him instantly. Justice Brown said: “The ’loading of tbe rails was done by it (the defendant) or its servants; and if the accident was sucb that it would not probably have occurred, in the ordinary course of transportation, if tbe car had been properly loaded, the circumstances attending the accident would furnish sufficient evidence to authorize a verdict for the plaintiffs if no explanations were given by tbe defendant.” 89 Tex. 172 , 34 S. W. 97 . Justice Brown in that ease, refers to the old English case of Byrne v. Boadle, 2 Hurl. & Co., p. 726 — a leading case illustrative of the doctrine of this maxim— where a barrel rolled out of a warehouse upon the sidewalk and injured the plaintiff. “A barrel could not roll out of a warehouse without some negligence,” suggestive of itself that a barrel (we believe usually round) might roll unless “scotched.” Tbe case of Gulf, Colorado & Santa Fé Ry. Co. v. Wood, supra, following tbe McCray Case, was one with reference to a lump of coal which suddenly fell from tbe tender of the engine, striking an employé in close proximity to same, and in reading tbe opinion negligence on the part of those having control of this object in either tbe loading of it, or tbe engineer and fireman in not properly taking care of tbe coal after having been loaded. *987 These are manifestations expressive of a negligent act from the beginning, or negligence while under the direct control of another agent of the master, arguing a causal connection with no hiatus to be bridged in the logic by the aid of the attending circumstances, and could be a proximate cause of the injury.
We find' cases where it is shown that an appliance has become defective by continued wear, and it is not necessary, in an action for injuries caused thereby, to prove that the master had notice of such condition; he is required to take notice of the physical law of the wear and tear of machinery, and constructive notice is the result. The case of Ry. Go. v. Silliphant, 70 Tex. 623 , 8 S. W. 673 (formerly cited by us upon the doctrine of ordinary care), indicates this principle, and was a case where the evidence showed that an appliance, a lever, was of pine timber, and showed decay and a partial break. Justice Gaines said: “Experience in using such instruments should indicate something of the probable effects of use, exposure, and time, or a combination of them, upon their strength, and when they would likely become unsafe.” The master is necessarily required to know that inanimate objects are subject to deterioration in quality, of course the period of time suggesting notice, longer or shorter, ac7 cording to the character of the appliance, the manner of its use, and the nature of the material; hence a jury question. On the main point Labatt, vol. 3 (2d Ed.) p. 2719, Master & Servant, says that: “Oases are not wanting in which the principle that fault cannot be imputed to the master unless he had notice of the existence of the conditions from which the servant’s injury resulted seems to have been ignored, and liability imposed upon evidence which merely showed that those conditions existed” — and cites as Texas cases the case of McCray v. Railway Company, supra, also Bonner v. Glenn, 79 Tex. 531 , 15 S. W. 572 ; Ry. Co. v. Taylor, 79 Tex. 104 , 14 S. W. 918 , 23 Am. St. Rep. 316 ; Ry. Co. v. White, 82 Tex. 543 , 18 S. W. 478 ; Ry. Co. v. Crow, 3 Tex. Civ. App. 266 , 22 S. W. 928 , and referring to other cases not necessary to mention. Our quotations from’this work and its general excellence does not preclude us from criticism of this note and annotation, for the reason that the annotator did not sound the cases nor analyze the facts sufficiently. The McCray Case by Justice Brown of the Supreme Court, as stated, is squarely on the doctrine of res ipsa loquitur. The attending circumstances and the condition suggest negligence ab initio. The case of Railway Co. v. Taylor, supra, was one involving a bad track near a bridge, which “had been in bad order about a month,” and there was proof of actual notice, not only to the roadmaster of the railroad, but to the foreman of the section. The case of Bonner v. Glenn, supra, presented a condition of a defective platform upon which plaintiff was standing when a collision occurred; the other operatives were attempting to make a train connection, struck the platform, causing the same to give way, and the jury evidently found that the “sills upon which the platform rested were rotten”; it takes quite a while for timber to become rotten in any country, necessarily imputing notice of its condition by lapse of time, coming squarely within the rule of the Silliphant Case, supra, decided by Justice Gaines. The case of Texas & Pacific Railway Company v. White, decided by Justice Fisher of the Commission of Appeals, involved a condition of an underhanging brake beam which was three inches from the rails when it should have hung six inches, and on account of this defect a brakeman, when making a coupling, caught his foot in said defective brake beam, clearly' presenting a negligent act of the railroad company or its agent when the brake beam was attached. The case of Railway Co. v. Crow, supra, involved a defective water spout, which had been out of repair for three months, and the defendant had actual knowledge of its defective condition.
To revert to the main issue, we think that the case of M., K. & T. Ry. Co. v. Thompson, 11 Tex. Civ. App. 660 -663, 33 S. W. 718, 720 , on the matter of the accident, defect, and injury suggestive of negligence, is; quite analogous, and we believe to' announce the correct doctrine. The brakeman in that ease was in the act of pulling a pin between two cars on the track. Chief Justice Lightfoot, in that case, held that the jury were justified in drawing the inference that the pin, draw-head, or coupling apparatus was defective. However, he further said: “But, even if this was true, they would not have been justified in drawing from such inference the further inference that such link, pin, drawhead, or other coupling apparatus had been in that condition a sufficient length of time to justify the conclusion of negligence on the part of the company. There was no evidence showing or fending to show how long the pin had been in that condition, the cause, or that the company or its officers knew of it, or that by the use of ordinary care they could have known it. The mere fact that the pin was fastened in the drawhead would not, of itself, be sufficient to establish negligence on the part of the company. ⅜ ⅜ ⅜ The jury could not, from the mere fact that the pin stuck in the drawhead, draw the inference that the apparatus was defective, and then base upon that the further inference that the officers of the company knew it, or by the use of ordinary care could have known of it, and that hence the company was negligent. This would be basing one inference upon another, which cannot be done. The substantive fact necessary to be established was that *988 the company was negligent. * * * We have the fact that the pin stuck in the draw-head; how it happened to stick there was not shown; how long it had been in that condition was not shown; that the company knew of it, or could have known, was not shown. We are asked to presume that the pin stuck by reason of a defect, and to further presume that such defect was known by the company.” Chief Justice Lightfoot applies the fundamental rule that a presumption cannot with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be drawn and none is drawn.
The case of Railway Company v. Barrager, 14 S. W. 242 , by the Supreme Court of the state, was one involving a defective draw-head, and Justice Gaines said: “If there was any negligence in the company which caused the drawhead to pull out, it was not proved. To say that the burden is upon the servant to show negligence upon the part of the master when he seeks to recover damages for injuries resulting from defective machinery is but to announce the elementary proposition that the plaintiff 'must prove his case; and we are of opinion that negligence on the part of a railroad company is not to be inferred from the mere fact that a draw-head has become detached in the operation of moving the train. R. R. Co. v. Thomas, 42 Ala. 672 . So that it seems to us that upon his main proposition plaintiff has failed in his case.” In the case of Gulf, Colorado & Santa Fé Ry. v. Kizziah, 86 Tex. 89 , 23 S. W. 581 , by Chief Justice Brown, there is a repetition by the Supreme Court: “That negligence on the part of the railroad company is not to be inferred from the mere fact that a drawhead has become detached in the operation of a moving train.”
The case of Texas & Pacific Railway Co. v. Endsley, 103 Tex. 435 , 129 S. W. 342 , was one where Endsley, a licensee, contended that he was struck by a swinging door of one of the box cars of the defendant; although the testimony was rather meager on this proposition, Chief Justice Brown treated it in this 'manner: “But if we concede that Endsley’s statement is correct, we yet have the question, Is it sufficient as a matter of law to support the judgment? The fact that the injury occurred, and that such injury resulted from a defective condition of the defendant’s car, is not sufficient to establish the necessary fact that the railroad company was negligent in permitting the door to be in that condition” (citing the Kizziah Case, the Barrager Case, and the case of Railway Co. v. Thompson, by Chief Justice Lightfoot, supra) — and, again quoting from the Barra-ger Caqe, by Justice Gaines, as applicable by analogy to the swinging door, “that negligence on the part of a railroad company is not to be inferred from the mere fact that a drawhead has become detached in the operation of a moving train.”
Appellee may say that the analogy does not exist between, those cases and the one at bar; that here we prove by an expert witness that, because this machinery acted in the manner in which it did, there were three defects which could have existed, and because, forsooth, this same witness said that, the master could, by the exercise of reasonable diligence, have discovered either one of the three defects, by proper inspection, the master is shown to have been negligent. In other words, we show as a substantive fact that Gammage did not touch the machine, hence a defect, an inference from the fact that Gammage says he never touched it. After showing this inference, an expert witness, upon the inference that it started itself, says that either of three defects might or could have caused the accident. Having shown that either three defects might or could have • caused the accident, he further infers that a reasonably prudent man, by the exercise of reasonable diligence,' could have discovered the defect. We believe the assertion of such logic argues its fallacy by its mere presentation. Stripped of all false logic, we believe that the only thing shown in this case with any degree of probative force is that a defect may have been existent. If we are wrong in this respect, and the three hypothetical defects, suggested by Kirby, the expert witness, could follow as a logical sequence from the conditions surrounding the accident, still, however, we have this condition : The machinery suddenly started. An expert witness reasons, that being so, it. could have been caused by one of three defects — of course he is unable to say which. That being so, the master could have discovered the same by the exercise of reasonable diligence.
The appellee has cited numerous cases, ■ some from Massachusetts and from other-states as to the sudden starting of machinery, proving negligence. We believe, without exception, unless it is the case of' Blanton v. Dold, 109 Mo. 64 , 18 S. W. 1149 , cited, when carefully read, suggest some condition, some additional circumstance, upon which the court acted and grasped as affirmative proof of negligence. The case of Ryan v. Fall River Iron Works Go., 200 Mass. 188, 86 . N. E. 311, where some loose language is used in regard to proof of negligence against the-master, exhibits a circumstance, slight it is true, which the court grasps in order to uphold the doctrine of negligence, and the very cases Justice Rugg recites as upholding the position that the starting of the machine of itself is some evidence of a defective condition (which we do not deny), do not bear him out as to the further proposition of proof of negligence, which is a broader and deeper proposition; that judge citing Gregory v_ *989 American Thread Co., 187 Mass. 239 , 72 N. E. 1362 ; Coleman v. Mechanics’ Iron Foundry Co., 168 Mass. 254 , 46 N. E. 1065 ; White v. Boston & A. R. Co., 144 Mass. 404 , 11 N. E. 552 . The courts of that state, we believe upon a careful reading of the opinions, have “shied” from the doctrine; that is, that mere proof of that fact alone, the sudden starting of a machine, while it may be proof of a defect, is proof of negligence. As Justice Rugg says, in most of the cases of automatic starting of machines from a state of rest, “there has been evidence of a previous starting, with notice of which the defendant might have been charged,” and in the very case he decides in which this language is used, there was other evidence of negligence besides the mere starting.
If this machine started from a defect which could not have been discovered by the exercise of ordinary care, of course appellee must admit that he has failed to prove his case. If the evidence upon the whole case is more compatible with the proposition that the start was a sudden one, which the employer could not foresee, and for which he could not be held in negligence, we are unable to see how appellee can recover. He says we should not consider the testimony of Gamer and Gorman, notwithstanding it travels with that of Gammage on parallel lines, to the extent of the knowledge of each. Such a consideration is not one of resolving a conflict, but one, in some cases, involving whether proof of a case is made. All the real testimony shows that this machine was never known to behave in this manner either before or after the accident. “There cannot be a recovery against a master for the personal injury of an employé where there is no evidence from which it can be determined which of several possible causes, some of which do not involve negligence of the master, produced the injury.” Syllabus of the opinion, Kenneson v. West End St. Ry. Co., 168 Mass. 1 , 46 N. E. 114 . Justice Holmes (then upon the Massachusetts Supreme Court) said in that case: “What caused the car to start is wholly uncertain. See Ross v. Cordage Co., 164 Mass. 257 , 41 N'. E. 284 [ 49 Am. St. Rep. 459 ]. It is suggested that the car was defective, but there is no satisfactory evidence that it was, or, if it toas, that the defeat was or ought to have been known to the defendant, or that it was of such a nature as to be likely to cause the start.” The production of the evidence, on physical facts, of the pláintiff, is not in the slightest inconsistent upon this point with the corroborative testimony of Gamer and Gorman, and make it as much, if not more, consistent with the theory that it was a sudden starting, and that, if a defect, the master could not have known of it, than the theory contended for by the appellee.
We overrule the motion for rehearing.

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