
    SAUER v. PALMER PRESS BRICK WORKS.
    (No. 1595.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 2, 1917.
    Rehearing Denied March 29, 1917.)
    1. Master and Servant <§=3197 — Injuries to Machinist in Brick Plant — Proximate Cause.
    In an action by a machinist in a brick plant, for damages for injuries sustained while in pit removing loose metal cups from a defective elevator belt, plaintiff held not entitled to recover, the proximate cause of injury being starting of elevator by plaintiff’s helper, a fellow servant.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. §§ 489, 490.]
    2. Master and Servant <⅜=>217(14) — Injuries to Servant — Assumption op Risk.
    Where servant was aware of the structure of the elevator box of which he complains during employment for about seven years, he assumed any risk for injury from such source, where the only danger lay in starting elevator while he was engaged in pit cleaning it out.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 584.]
    Error from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by Charles Sauer against the Palmer Press Brick Works. Judgment for defendant and plaintiff brings error.
    Affirmed.
    The action is by tbe plaintiff in error against the defendant in error for damages for personal injuries. The petition alleged negligence in two particulars: First, the furnishing of an elevator belt which was worn and old and insufficient to sustain- the metal cups iattached, thereto; and, second, the failure .to furnish a safe place in which to work, in that the foot or bottom of tbe elevator box was not properly constructed. It was further alleged that complaint had been made of the belt to the president of the defendant, and a new belt had been promised. The defendant, besides denial, pleaded assumed risk and that the injury solely resulted from the act of a fellow serv-. ant of the plaintiff in starting the machinery with which he was at work. After hearing all the evidence, the court peremptorily instructed a verdict in favor of the defendant.
    The defendant was engaged in operating a brick plant at Palmer, Tex. The plaintiff was the machinist for the defendant, and had been for about eight years in charge of the machinery of the plant. His duties were to keep the machinery in repair and in proper operating condition. Plaintiff had a helper named Jolly Tucker. For the purpose of carrying the dirt used in the manufacture of the brick from the dry-pan, fed through a chute near the ground, to the hopper upstairs in the building, an elevator was used, extending from tbe dry-pan to tbe hopper. This elevator consisted of a wooden box through which operated a leather belt, to wbicb were attached about 56 metal cups or buckets, each of the size of 5½ by 10 inches. These cups were attached to the elevator belt by metal brads, and as tbe cups passed up they pick up or catch the dirt that-comes into the dry-pan through the chute. At the bottom of the elevator box there is a pulley, and up near the roof of the building there is a line shaft with a pulley, and the elevator belt runs over these pulleys. On the line shaft there was another pulley, over which the drivé 'belt connected with the engine operated. On the day in question the elevator choked up, causing the operation of the same to stop. This was caused by one or two of the metal cups becoming partially loose or unfastened from the belt and catching on the side of the wooden box of tbe elevator at tbe bottom of tbe elevator shaft. The elevator belt was old and worn and in bad condition, and on account of this condition tbe brads in the metal cups would pull out of and come loose from the belt. While tbe operation of the belt was stopped tbe plaintiff, as was his duty, undertook to relieve the condition of tbe elevator. In order to do the work tbe plaintiff, as was tbe way to do this work, got in tbe pit or hole on the ground at the bottom of the elevator shaft, and extended his right hand and arm up underneath and into the lower part of the elevator box or shaft where ifc was clogged, located a loose metal cup, and attempted to unfasten it from the dirt which obstructed tbe movement of tbe elevator. The ' metal cup bad become loose by reason of one of tbe metal brads which held it to the belt pulling out of the belt. As plaintiff took bold of tbe loose cup with his right hand, and started to pull it down and out of the belt, the machinery and belt suddenly started in operation grievously injuring tbe plaintiff’s right hand and fingers. Jolly Tucker, a helper to the plaintiff, started the machinery to working while plaintiff was engaged in cleaning the elevator bottom. Tucker said, “I put the belt on to start the elevator; the elevator started then.” Plaintiff testified:
    “I was pulling that off [meaning the loose metal cup] when the machinery and belt started up, and it caught -my hand. Jolly Tucker was working at the plant; he was cleaning up, helping me if I needed any help; he was my helper — that is, he worked first one place and another; he helped me. If the foreman needed him any place around the yard, he would use him there. Tucker did not have authority to hire hands there to work nor authority to discharge them. Mr. Tucker was really under me; he was not as high grade employé as I was. I had no authority to employ or discharge hands. The foreman was the man who did that. I don’t know of my own knowledge — that is, I am not positive — who started the machinery up. Of course, Mr. Tucker was the man that was to be up there. All I know about it is that he left me and said he would go back upstairs. * ⅜ * If that belt had not been started up, my hand would never have been hurt. If the belt had not been defective and the cups tom loose, my hand would not have been cut. ⅜ * * I got hold of the cup and started to pull it down; the belt was put on and it caught my hand. That was about five or six minutes after I gaya the order not to put it on.”
    
      The plaintiff further testified that there should have been a door in the elevator box to enable him to get inside the elevator box to the belt when it was clogged. The elevator box, according to the undisputed evidence, existed as constructed during all the time that plaintiff was employed by the defendant, and he used the same method for cleaning out the box on the occasion of the injury as he had done many times before; and the plaintiff was thoroughly familiar with all conditions existing at the plant. It was further shown that the plaintiff called the attention of the president of the company to the condition of the belt, and requested him to get a new 'belt, and that the new belt was gotten and was there ready to be installed at the time of the injury.
    Chas. F. Olint, D. B. Eades, and Eric Eades, all of Dallas, for plaintiff in error. Thomas & Rhea, of Dallas, for defendant in error.
   LEVY, J.

(after stating the facts as above). [1 ] The appeal is to review the correctness of the ruling of the trial court in peremptorily instructing a verdict for the defendant. And it is believed that, according to the evidence in the case, it should be held that the court did not err. The evidence sufficiently shows that the leather belt was old and worn and insufficient to hold thepnetal cups fast and secure to the belt, and that because of the deficient condition of the leather belt several of the metal cups had become’ loose and unfastened from the belt. And the evidence would warrant a finding by the jury that the furnishing and use by the defendant of the worn and insufficient belt was negligence. But at the time the plaintiff was doing his work in removing the loose metal cup from the defective belt, the belt was not being operated and the machinery was stopped. And the evidence shows without dispute that the plaintiff’s injury did not proceed from his work of itself in removing the loose metal cup from the defective belt or because of the defective belt. The sudden starting of the machinery, which had been stopped for the purpose of safely doing the work in hand, caused the belt to. move upward, and this act of starting the machinery caused the plaintiff’s hand to ,be injured. Situated as plaintiff’s hand was at the time, inside the elevator shaft, it would have been injured by the sudden operation of the belt, irrespective of whether the belt was defective or not defective. And therefore it would conclusively appear that the sole proximate cause of the plaintiff’s injury was the act of Jolly Tucker in starting the machinery when he did, and that Jolly Tucker and the plaintiff were fellow servants. Lumber Co. v. Hastings, 152 S. W. 863; Oil Co. v. Edgmon, 155 S. W. 1012; Jones v. Lumber Co., 162 S. W. 420.

The plaintiff claimed that the elevator box or shaft was not properly constructed, in that “there ought to have been a door in that-elevator box to enable me to get inside of the box to the belt when it clogged up.” The elevator box or shaft was, it appears, a permanent structure, and had existed as first constructed for more than eight years. The plaintiff testified:

“When I first went to work there, that elevator was just like it was when I got hurt. The box went up to the top of the building and came down in this pit. I had to get in the pit and clean the box when it was choked all the time I worked there, the same as I did on the occasion I was hurt. I was there six or seven years. * * * I went down in that pit and cleaned it out just the same way I had cleaned it out lots of times before, and I frequently cleaned it out; had frequently gone down into the hole and gone through just exactly the same thing I did that time and cleaned it out; I had been doing that ever since I had gone there to work the first time, and I did it that time just the same- way I had always done it.”

Thus it conclusively appears plaintiff was aware of the structure of the elevator box or shaft as it existed and of which he complains. And this evidence would plainly show that no danger existed on account of its construction as it existed, but for the fact that the machinery was started in operation while plaintiff had his hand in a position to be caught in the elevator. The particular danger arose and proceeded from starting the machinery, and this danger was just as apparent to the plaintiff accustomed as he said he was to machinery and the operation of this elevator, as to any one connected with the defendant. Suggesting, as plaintiff does, the improvement that should have been made in the elevator box or shaft, it may not be said he was ignorant of the dangers of the condition that existed. It is believed that, under the evidence most favorable to the plaintiff any injury arising to him from the bottom of the elevator box or shaft not being, as claimed by plaintiff, properly constructed, was assumed by plaintiff. Oil Co. v. Shaw, 27 Tex. Civ. App. 65, 65 S. W. 693; Brown v. Miller, 62 S. W. 547.

The judgment is affirmed. 
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     