(dissenting).
Plaintiff, Longoria, urges that the trial court erred in holding, (1) that there is no evidence that Cantu was negligent, and in holding (2) that there is no evidence that Cantu was the employee of Violet Gin Company. Both of these points present questions of law. Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982. In determining whether the court properly instructed a verdict, we must view the evidence in the light most favorable toward plaintiff, and indulge against the instruction every inference that may properly be drawn from the evidence. White v. White, 141 Tex. 328, 172 S.W.2d 295. “If there is any conflicting evidence, either direct or circumstantial, in the record of a probative nature, the case is for the jury.” Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725, 729.
I respectfully dissent from the view expressed by the majority. Plaintiff, Longoria, presented his evidence and then rested. Defendant Violet Gin Company presented its evidence, and rested. The court then granted an instructed verdict. The opinion of the majority holds that in a negligence case, the plaintiff must produce eye witnesses to prove each fact. It holds that circumstances, however compelling, cannot be used to prove a jury case. It means that in the absence of direct proof, a judge should draw the inferences from the circumstances rather than the jury. It means that a plaintiff must prove his case beyond a reasonable doubt, and if there exists any reasonable hypothesis consistent with non-liability the court should withdraw the case from the jury. It means that the plaintiff must not only prove a prima facie case, but he must also negative all adverse inferences, and this must be done beyond a reasonable doubt. These principles are not the law.
There was evidence of negligence. Plaintiff among other matters, alleged that “said employee and servant (Cantu) of said defendant, while attempting to raise and pick up said corrugated sheet iron from the ground, permitted same to slip from his grasp and strike plaintiff.” Plaintiff proved that he was facing east, working with his welding machine. His machine was to his left, on the north. To the south and on his right were three stacks of sheet iron which paralleled his welding machine. He suddenly saw a sheet of iron flying toward him. He threw up his right hand to protect his face and neck. The metal came from Lon-goria’s right-hand side, the south side.
*488’That was the side and the only side from which the proof shows there was any stacked metal. Longoria instantly turned rftaa bis right and saw Cantu standing on rtthe 'second stack of sheet iron holding two sheets «jf the iron in his hands. Cantu '•was "holding the sheets of metal at an aaygle of about seventy-five degrees from horizontal with the bottom resting on the stack. There was nobody else to the right-hand or south side of Longoria except Cantu. Cantu was also facing east. These facts were proved. Witness Mo-lino testified that he saw Cantu holding sheet iron immediately after the injury. He also testified that after the injury Cantu “put them back down.” When asked about the number of people in the vicinity of the sheet iron, he answered, '“only the one who was picking them up.” Longoria testified to these same facts and nobody denied them. He said, “When I looked around, this fellow Cantu was standing there with some pieces of iron in his hand, turning it up with two hands like that (illustrating).”
Longoria testified that Cantu was four and one-half feet away from him immediately after the accident. Witness Mo-lino estimated the distance between Cantu and Longoria at nine feet. The jury could, and we must take the most favorable view of the evidence toward plaintiff, but whether we take the evidence of either witness, a sheet falling from Cantu’s grip would strike plaintiff, because the direct testimony is that the sheets of iron were from eight to ten feet long.
The majority holds that because someone did not see the sheet of iron leave Cantu’s hand or control, the plaintiff failed to prove a case. The conclusion is reached because, as the majority states, there were other persons and firms working around the general plant grounds. The majority concludes that there is another possible explanation for the accident. The direct proof is that all these other operations and people were either to the west of and behind Longoria and Cantu, or to the south, at least thirty feet away. Defendants, by cross-examination, endeavored to get an admission from Lon-goria that the sheet iron could have come from above or behind him instead of from the direction of Cantu. Longoria positively denied this and said that it came “from the side.” When asked if it came from up high as if it fell from the top of a tank, he stated: “It was coming from the side.” Hence, again, we have the direct denial of the defendants’ theory that the sheet came from some other place.
The direct testimony is that the wind was blowing normally. The average velocity was about fifteen and a half miles per hour. It was blowing from the southeast. The majority say that “it is a fair deduction” that the sheets would have fallen back on the stack of sheet iron. It is not for us to draw deductions from the evidence; that is the task of the jury, and they may disagree with the majority, as I do, The majority announce the law that sheet iron falls east and west and is precedent for the proposition that sheet iron does riot fall north or south. ¡
This case, therefore, is narrowed down to a split second of time when a witness ' did not see a sheet of iron. All other matters are proved by direct evidence. A jury could draw an equally fair deduction that Cantu was four and a half feet away, picking up several ten-foot pieces of sheet iron at the same time and that he lost control so that one sheet fell in the direction of Longoria. They could draw a fair inference against defendant that a wind from the southeast would blow any metal which fell from a place to the west or north of Longoria so it would have entirely missed him. It would do no violence to my sense of deduction if a jury should find that the metal came from the only place and only direction there was a man manipulating several sheets of iron, with that man less than two steps away from the injured plaintiff.
*489The opinion of the majority requires a plaintiff to eliminate, as a matter of law, all possible contrary explanations and inferences for the accident. There are few negligence actions in which there are not inferences both of negligence and also of no negligence. A case can be proved by inferences though there are no eye witnesses to the fact. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892; Missouri-Kansas-Texas R. Co. of Texas v. Sanderson, Tex.Civ.App., 174 S.W.2d 646; West v. Cashin, Tex.Civ.App., 83 S.W.2d 1001, 1007.
The majority draws adverse inferences from plaintiff’s failure to call certain witnesses. The first fault with the argument is that such inferences are for the jury. The other fault with the argument is that the witnesses who were not called were the defendant and his employee, Cantu. The principle announced by the majority would impose the duty on the plaintiff to call the adverse party and his employee or suffer an instructed verdict. In my opinion, the inferences, after both parties closed, would operate strongly against the defendant, who neither took the witness stand nor called his employee, Cantu. This is the rule stated in 17 Tex.Jur., Evidence, Sec. 86:
“Where a party to an action fails to produce evidence which he could have produced and which it was his duty to produce, it will be presumed that if produced it would have been unfavorable to him and would have operated against him and every in-tendment will be in favor of the opposite party. Such an unfavorable presumption may arise, for example, from the failure of a party to produce testimony peculiarly within his knowledge or his failure to call witnesses who have knowledge of the facts, especially his own agents or servants.”
The other point presented in the case is whether plaintiff proved that Cantu was the servant of the defendants. There is no evidence that ties the G. C. Kay Company to Cantu in any way, and the directed verdict in that firm’s favor should be affirmed. While this Court is in agreement that plaintiff proved that Cantu was the employee of Violet Gin Company, I should like to discuss that matter more fully.
There are at least three established facts from which inferences of the master-servant relationship may be drawn. Who paid Cantu? The record shows that Violet Gin Company had Cantu on its payroll on the day in question, and that it paid him his wages “for work done by him on the gin plant premises” on the day of the accident. This is fact one. This relationship between Cantu and Violet Gin Company, by which the Gin Company paid him for the day’s work, produces the easy inference that the paying employer also controlled the employee. Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416, 418; Moreman v. Armour & Co., Tex.Civ.App., 65 S.W.2d 334, 338; Southern Pac. Co. v. Wellington, Tex.Civ.App., 36 S.W. 1114; 57 C.J.S. Master and Servant § 501 (a) (1).
Plaintiff further proved that Cantu was-actually working on the Gin Company premises. Defendants admitted that Cantu “was working on such gin plant premises on the morning of May 24, 1955,” and was paid for work done by him “on the gin plant premises.” Plaintiff proved that he began work at 8:00 o’clock in the morning. It was at that same time that Cantu was seen working on top of the piles of sheet iron. This is fact two. From this fact, it is a simple inference that Cantu was under the control of the one on whose premises he was performing the work. Taylor, B. & H. R. Co. v. Warner, 88 Tex. 642, 32 S.W. 868; Texas Co. v. Freer, Tex.Civ.App., 151 S.W.2d 907; Murray’s Case, 130 Me. 181, 154 A. 352, 75 A.L.R. 720; Dobson’s Case, 124 Me. 305, 309, 128 A. 401, 403, 42 A.L.R. 603; 56 C.J.S. Master and Servant § 12; accord, Joslin v. Idaho Times Pub. Co., 56 Idaho 242, 53 P.2d 323.
*490The record by stipulation shows that Violet Gin Company had some character of a construction contract with G. C. Kay Company, by which that firm was to erect certain structures. The Gin Company had agreed to furnish the necessary sheet metal, and, according to the stipulation, the Gin Company “had ordered and secured” the sheet metal. This is fact three. A fact finder could very well draw the inference that Cantu was working with the sheet metal to further the interest of his employer, since the Gin Company was interested in the progress of the construction. McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442, 446; Ochoa v. Winerich Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416; Baray v. Escobedo, Tex.Civ.App., 259 S.W. 1099; Kampmann v. Rothwell, Tex.Civ.App., 107 S.W. 120, 122. The reasoning of defendant Gin Company is that the nature of employer’s business was ginning cotton, and that since Cantu was not doing something in connection with that process, he was not engaged in the business of his employer. This record shows that the employer was not only interested in ginning cotton, but that he also was interested in some improvements on his physical plant. It would be a strange rule which stated that an employer’s responsibility did not commence until his plant was erected.
We are not limited to a single fact from which an inference of the master-servant relationship might be drawn. We have several. A jury could well have found that Cantu was under the control of the master who paid him, on whose premises he was working, and whose interest he was advancing.
The Gin Company suggests the possibility that Cantu was a loaned servant. There is no fact in this record which suggests this. Admittedly, Violet Gin Company was Cantu’s general employer. The idea that he was the special employee of some un-designated employer crept into this case in the briefs. It was not pleaded. It was not stated as one of the grounds for the instructed verdict. It was not raised by the evidence. It appears as argument in the briefs. Whether Cantu was a loaned employee, and whether he was loaned to an independent contractor are affirmative defenses, with the burden of proof upon the defendant. Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94; Ochoa v. Winerich Motor Sales Co., supra; 56 C.J.S. Master and Servant § 12.
I would reverse and remand the case as to Violet Gin Company.