
    TEXAS GLASS & PAINT CO. v. REESE. 
    
    (No. 967.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1916.
    On Motion for Rehearing, June 7, 1916.)
    1. Master and Servant &wkey;>297(l) — In Jury-Negligence — Place to Work — Findings.
    Findings on special issues in an action for injuries to plaintiff, a night watchman, thrown down an elevator shaft, through striking his head on a plank of a scaffolding projecting into a doorway, through which his duties required Mm to pass, that the plank caused the accident, and that defendant proprietor by the exercise of ordinary care should have known of its existence, sufficiently finds that defendant was negligent in its duty of providing plaintiff a reasonably safe place to perform his services.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1195; Dec. Dig. <&wkey;> 297(1).]
    
      2. Evidence &wkey;sS14(l) — Hearsay — Watchman’s Record.
    A watchman’s record made by his punching or pulling boxes resulting in marks on a tape, in a central office, against which an operator puts down the time they came in, is not admissible on the question of such time, without testimony of the operator as to the accuracy of time put down by him, being hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Big. § 1168; Dec. Dig. &wkey;314(l).]
    On Rehearing.
    
      3. Master and Servant <&wkey;217(l) — Assumption of Risk — Master’s Negligence.
    An employe does not assume the negligence of the master unless he knows or should have known thereof.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 574; Dec. Dig. <S&wkey; 217(1).]
    4. Master and Servant &wkey;280 — Assumption of Risk — Knowledge—Evidence.
    That a night watchman, before hitting his head on a plank negligently left projecting into a doorway, passed through several times in safety, is not conclusive that he knew or ought to have known of it relative to assumption of risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986 ; Dee. Dig. <&wkey;> 280.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by G. W. Reese against the Texas Glass & Paint Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. Muse & Muse, of Dallas, for appellee.
    
      
      Application for writ of error pending in Supreme Court.
    
   HUFF, C. J.

The appellee sued appellant company for damages for alleged personal injuries. It is alleged: That appellant, for the purpose of installing a passenger elevator in its four-story building, had constructed a temporary stairway and in doing this work had negligently “left a plank or timber from the side of said walls across said doorway on said fourth floor at the stairway, at its opening into the elevator shaft on the fourth floor of said building, so that one undertaking to enter said stairway from the south side would strike their head on said plank or timber so negligently across a portion of said opening or doorway to the stairway aforesaid, endangering the life and safety of those using the stairway.” That under a written contract between the Smith Detective Agency and appellant the agency was to furnish a guard for the premises on the inside during the nighttime. The duty of the watchman during the night was at stated hours to visit the basement and each of the several floors and register upon a punch clock on each floor, thereby verifying the performance of his duty, for which service the agency was paid a consideration by appellant; and that appellee was employed by the agency in such duty for the appellant under the contract. Negligence was also alleged in failing to furnish sufficient lights to the appellee, as it is alleged appellant was bound to do. The findings of the jury eliminated this ground of negligence upon which recovery was sought. That while in the discharge of his duty, as night watchman, after registering on the fourth floor and in leaving the doorway to the stairway on the side upon which the plank or timber extended across the door, and in ignorance of the same, appellee struck his head and face against the timber, which caused him to fall or be thrown from the fourth floor of the building, through the elevator shaft down to the basement, thereby inflicting injuries of which complaint is made. Appellant, by its answer, in some particulars, admitted the allegations of the ap-pellee, and in others denied, pleading contributory negligence and assumed risk on the part of the appellee. The case was submitted, upon special issues, to a jury. The jury find that appellee’s injuries were occasioned by his head coming in contact with the projecting timber over or across the stairway landing on the fourth floor of" appellant’s building, thereby causing him to fall through the elevator shaft from the fourth floor of the building to the basement; that he had no knowledge of the existence of the timber pri- or to striking his head against it; that he could not have known of the existence of such projecting timber by the exercise of ordinary care in the discharge of his duties as such night watchman; that appellant company, in the exercise of ordinary care, should have known of the existence of such projecting timber prior to the injury and that the injury was sustained by appellee while he was in the performance of his duties of night watchman, in the appellant’s building; that appellee exercised ordinary care in such duties at the time of the accident. They also find it was necessary for the appellee to pass under the timber to go through the door in entering and in leaving the room on the fourth floor. They find the lantern used was such that an ordinary prudent watchman would use in his duties as such, that appellee was not guilty of contributory negligence, and that he sustained damages in the sum of $1,000.

We think the facts found by the jury are supported by the evidence; that these findings of fact may be legitimately inferred from the testimony of the witness. In making this finding, we do so without deeming it necessary to set out the evidence upon which it is based. We therefore overrule assignments 1 to 7, inclusive.

The eighth assignment is overruled for the reason that the findings of fact, in answer to issue No. 2, is to the effect that appellee had no knowledge of the timber across the door and could not have known of the same by the exercise of ordinary care. This issue included substantially the facts sought to be passed upon by tbe requested charge, No. 2, of appellant.

Assignments 9 to 14, inclusive, are overruled, upon tbe ground stated in overruling 1 to 7.

Tbe jury having found that tbe timber caused tbe injury, and that appellee did not know and could not have known of tbe same by tbe use of ordinary care, and that appellant, by tbe exercise of ordinary care, should have known of its existence, sufficiently found that appellant was negligent in tbe performance of its duty towards appellee, who, in the discharge of bis duty in appellant’s service, owed to him tbe duty of providing him a reasonably safe place to perform that service. That the place was not a reasonably safe one is shown by the fact that in tbe door where appellee was required to enter and leave tbe room in tbe performance of bis necessary work, a timber was placed so that it would strike bis bead, thereby rendering it probable that be would be precipitated into tbe well of tbe elevator. This scaffolding or platform, so erected by appellant, it must have known was dangerous, or by tbe use of ordinary care that it would be so to this night watchman.

Tbe fifteenth assignment of error asserts error in tbe action of tbe court in rejecting two slips of paper of tbe record of tbe detective agency of tbe morning of October 23, 1912, tbe date of the injury, which slips were tbe purported records of appellee’s visits to tbe several floors of appellant’s building on tbe night of October 22d and 23d. It appears the watchman punches or pulls tbe box every hour, and the record of tbe box pulled goes into tbe detective office on a wire, and tbe night manager in tbe office takes tbe number of tbe box and time on a record tape. In tbe morning, tbe agency would send one of them to appellant and it would keep tbe duplicate. Tbe number is given by a ring in tbe office, and this number is designated by dots or a code. These rings do not give tbe hour. “Tbe night manager looks at tbe time when tbe next one comes on tbe tape; be marks tbe time on it.” Tbe slips offered in evidence were not made out by tbe witness whose testimony was rejected, but by the night manager, who was not offered to show tbe accuracy of tbe report. Tbe witness testified:

“On October 23d, we bad one operator, Mr. Cunningham, and the accuracy of the report depends upon the accuracy of the operator in making the report. * * * The tape shows only the hieroglyphics — just like a telegraph operator. So many dots for each number, and you give him a key, and anybody can read the number.”

Tbe slips offered show the hours from tbe time appellant went on duty, 7 p. m., October 22d, to 6 o’clock a. m., October 23d, purporting to register each box on all five of tbe floors, from the basement to the fourth floor.

The appellee objected that tbe validity of tbe paper depends upon tbe accuracy of tbe night operator, and, unless there was testimony of the operator who made them that tbe slips were correct, they should not be admitted; that tbe hours, as shown by tbe record offered, depended upon tbe accuracy of tbe act of tbe operator. Tbe effect, if admitted, would be to admit hearsay evidence of tbe operator, Cunningham. The court sustained these objections, and we believe properly. Tbe record made was not automatically done by tbe instrumentalities used as to tbe time, but this was made by tbe operator at the time' of receiving tbe number of tbe box pulled. Tbe time was tbe important question sought to be presented by this testimony. If tbe entries bad been shown to have been made correctly, as to tbe time by tbe party making them, perhaps the slips would have been admissible. As we understand, evidence of this character is not admissible in this state. Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103; Id., 124 S. W. 217.

We find no reversible error, and tbe case will be affirmed.

On Motion for Rehearing.

Tbe appellant assumes that this court affirmed tbe case, on tbe theory that tbe Workman’s Compensation Law, passed October, 1912, and effective September, 1913, controls it. We do not refer to the act in tbe opinion and are unable to see upon what appellant based its assumption. Tbe mere fact that one of tbe judges asked a question during tbe oral argument, before tbe court, certainly does not warrant any such presumption.

The employé does not assume tbe negligence of tbe master unless be knows, or should have known, thereof. Tbe fact that be may know tbe master is repairing a stairway does not charge him with tbe knowledge that tbe master has negligently placed a timber in tbe door through which bis duties require him to pass every hour of tbe night, in such a position as to endanger him. The fact that be was fortunate enough to miss it in making bis trips theretofore during the night does not conclusively show that he knew it was so placed in tbe door, or that be ought to have known it was there. He bad tbe right to assume it was not there and that tbe master bad done its duty. There was nothing shown by tbe facts to put him upon tbe inquiry as to whether the plank was so dangerously placed in tbe doorway. On tbe question of negligence in maintaining tbe premises as a reasonably safe place, we cite Memphis, etc., v. Gardner, 171 S. W. 1082-1085.

Tbe motion for rehearing will be overruled. 
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