Alko-Nak Coal Co. v. Barton
| Decision Date | 19 September 1922 |
| Docket Number | 12225. |
| Citation | 212 P. 591,88 Okla. 212,1922 OK 269 |
| Parties | ALKO-NAK COAL CO. v. BARTON ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 13, 1923.
Syllabus by the Court.
Under section 5282, Rev. Laws 1910, the surviving widow of a resident deceased husband whose death was occasioned by the wrongful act or omission of any person or corporation may maintain an action for damages, and, where the petition of the plaintiff alleges that no personal representative has been appointed by the county court of the county of which the decedent was a resident on the date of his death, such court being the only court having jurisdiction to appoint an administrator of such decedent's estate within the state held, that a demurrer to the petition upon the ground that the petition failed to allege that no personal representative had been appointed within the state of Oklahoma was properly overruled.
Record examined, and held, that the evidence was sufficient to show that no personal representative had been appointed for the estate of the deceased.
In an action to recover damages for the wrongful death of the plaintiff's decedent, where it appears from the evidence adduced in the trial of the cause that the death of the decedent occurred while working in a strip pit mine taking up rails and ties from behind a steam shovel, moving said rails and ties to the front of said shovel for the purpose of bedding up the track over which said shovel was operated, and that said decedent in going from behind said shovel to the front ordinarily walked on the track used by the defendant coal company in operating its coal train in transporting the coal to the tipple where said coal was unloaded, the deceased was struck in the back by said coal train, and the plaintiff only relied upon acts of negligence of the defendant in operating said train to establish her cause of action, the defendant tendered an issue as to whether the deceased was guilty of contributory negligence in carelessly going upon the track of the defendant when the train was approaching and such defense was submitted to the jury under proper instructions, held, it was not error to not submit an issue tendered by the defendant as to whether the deceased voluntarily assumed the risk.
Record examined, and held, under section 6005, Rev. Laws 1910, any error committed in the admission of testimony was harmless.
Additional Syllabus by Editorial Staff.
Assumption of risk is based upon the intelligent acquiescence in a known danger and the appreciation of such risk usually incident to the employment, and relates to the acquiescence of an ordinarily prudent man in engaging in the work of the employer where the known danger and risk incident to such work is assumed under the express or implied terms of the contract of employment.
The fundamental distinction between assumption of risk and contributory negligence is that the former relates to the recognition and acquiescence of the employee of a condition existing under which he undertakes or continues to labor while the latter relates to his conduct.
Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
Action by Margaret Barton and others against the Alko-Nak Coal Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
Where it appeared from the evidence that the death of an employe occurred while working in a strip pit mine taking up rails and ties behind a steam shovel, moving them to the front of the shovel for the purpose of bedding up the track over which the shovel was operated, and that in going from behind the shovel to the front, decedent ordinarily walked on the track used by defendant coal company in operating its coal train, which struck him in the back, and the plaintiff only relied upon acts of negligence of defendant in operating the train to establish her cause of action, and the defendant tendered an issue as to whether deceased was guilty of contributory negligence in carelessly going upon the track when the train was approaching, and such defense was submitted to the jury under proper instructions, held that it was not error to not submit an issue tendered by defendant as to whether deceased voluntarily assumed the risk.
Simpson, Hummer & Foster, of Okmulgee, for plaintiff in error.
W. T. Banks, of Henryetta, and James Hepburn, of Okmulgee, and Barclay Morgan, of Henryetta (Con Murphy, of Kansas City, Mo., of counsel), for defendants in error.
Margaret Barton, widow of George W. Barton, deceased, for herself and as next friend for her minor children, Nova Barton and Edna Barton, and Neva Barton, adult dependent daughter of deceased, as plaintiffs, commenced this action in the superior court of Okmulgee county, Henryetta division, against the Alko-Nak Coal Company, a corporation, defendant, to recover $40,000 damages for the alleged wrongful death of George W. Barton, deceased.
The petition alleged, and the evidence in the trial of the case established, in substance, the following facts: That the defendant company on the 19th day of March, 1920, was engaged in mining coal near Henryetta, Okmulgee county, Okl., in a mine known as the Alko-Nak strip pit, and that George W. Barton on said date was employed by said company as one of the two track layers for the big steam shovel that was used by said company in mining coal in the strip pit; that said strip pit of the defendant company was at the time about 60 feet wide from east to west, and 500 yards long from the north end to the south end; that on the date of the accident, March 19, 1920, in which George W. Barton was killed, the steam shovel was anchored on the west side of the cut about 400 yards south of the tipple, said shovel being headed north; that George W. Barton was taking up rails and ties from behind the steam shovel, and moving them around to the front to bed up the track for said shovel to run on; that it was the duty of George W. Barton to carry and put down the rails and his part of the ties on the east side of the cut, and on the east side of the anchored steam shovel; that in doing this work he would take a tie in his arms and walk around from behind the anchored steam shovel to the front end of it, and in going from behind the shovel to the front of the same he had to walk on the track used by the small locomotive engine, known as the "dinkey engine," which was used in hauling the cars of coal; that there was not room between the track used in moving the coal cars and the anchored steam shovel for a man to stand, move, or work without getting on the track used by the coal train.
It appears that on the date of the accident George W. Barton was walking from behind the steam shovel with a tie in his arms, going to the front of the steam shovel, when a string of loaded coal cars was pushed down the track north, and struck George W. Barton in the back, knocking him down, three of said loaded cars passing over his body, cutting off and crushing both of his legs, from which injuries Barton died in a few minutes. The specific acts of negligence alleged by the plaintiffs in their petition charged the defendant company with operating said coal train in a negligent manner in pushing said train of cars down the track, where defendant company knew the employees were working along the track, without any lookout on said cars or the end car, and in employing an incompetent and unlicensed engineer to operate said "dinkey engine," and that the incompetency of said engineer was known, or could have been known, by the defendant; that said engineer was negligent in not keeping a lookout for workmen along the track, and not having signaled such workmen of the approach of the train, and to have slowed the speed of said train until the deceased could have gotten out of the way; that such acts of negligence were the proximate cause of the death of George W. Barton, deceased.
The petition of the plaintiffs alleged that they were all residents of Henryetta, Okmulgee county, Okl., and that no personal legal representative or administrator of the estate of the deceased had been appointed by the county court of Okmulgee county, Okl.
The defendant company filed a general demurrer to the petition of the plaintiffs, which was by the court overruled, and exceptions allowed. Thereafter the defendant company filed an answer denying generally the allegations of the plaintiffs' petition, pleading contributory negligence and assumption of risk. The plaintiffs filed reply in substance a general denial to defendant's answer. The cause was tried on the 5th day of October, 1920, before a jury, and after the introduction of the evidence by the plaintiffs, defendant filed a general demurrer to the evidence introduced in support of the plaintiffs' cause of action, which demurrer was overruled, and exceptions allowed. Defendant introduced its evidence, and, after the court had instructed the jury as to the law of the case, the jury returned a verdict in favor of the plaintiffs in the sum of $5,000. Motion for new trial was filed and overruled, and this appeal is prosecuted by the defendant to reverse the judgment of the trial court.
Numerous errors have been assigned as grounds for reversal of the judgment. The first proposition argued by counsel for the defendant company is that there is no allegation in the petition nor proof in the record that no administrator of the estate of George W. Barton, deceased, had been appointed. We are unable to agree with counsel for defendant in this contention. If the contention of counsel for the defendant is true that the petition of the plaintiffs failed to allege that no administrator had been appointed for the estate of George W. Barton, deceased, nor that any proof was offered in...
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