Anthony v. Bliss
| Decision Date | 02 September 1913 |
| Citation | 134 P. 1122,39 Okla. 237,1913 OK 526 |
| Parties | ANTHONY v. BLISS, ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence, and upon a demurrer to the evidence the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him reasonably tends to prove.
In an action for injuries caused by negligence, the court should not take the case from the jury, except where the facts are such that all reasonable men must draw the same conclusion from them.
In an action for injury caused by negligence, where the defense of contributory negligence is interposed, it is error for the court to take the case from the jury, where there is any competent testimony, considered in the light most favorable to plaintiff which reasonably tends to show a primary negligence.
Commissioners' Opinion. Division No. 2. Error from District Court, Tulsa County; L. M. Poe, Judge.
Action by Charlotte Anthony against C. W. Bliss and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
Hainer & Martin and Hindman & Woodford, all of Tulsa, for plaintiff in error.
Philip Kates, of Tulsa, and Jas. S. Ross, of Oklahoma City, for defendants in error.
This action was begun August 16, 1909, for damages sustained by the death of plaintiff's husband, Jas. Anthony. Defendants C. W. Bliss and Thos. B. Bliss were the owners of a certain five-story building in the city of Tulsa. The defendants C. E. Stewart and G. A. Stewart were the contractors who had constructed the building. The deceased was killed while constructing a stairway in said building. The action was brought against the owners and the contractors, charging them with negligence resulting in the death of plaintiff's husband. A demurrer to the petition was sustained as to the contractors, but overruled as to the owners of the building, who then answered, denying any liability or any negligence, and alleging that the deceased met his death by his own carelessness and contributory negligence. Upon the issues thus formed the cause was tried. The court sustained a demurrer to plaintiff's evidence took the case from the jury, and rendered judgment in favor of defendants. From such judgment, the plaintiff appeals upon five assignments of error. The first being that the court erred in sustaining the demurrer of the defendants C. E Stewart and G. A. Stewart and dismissing the action as to them. The other assignments all relate to and will be considered under the one proposition, that the court erred in taking the case from the jury. The first assignment is not urged. Counsel for plaintiff in error opened the argument in their brief with the following language: "We deem it necessary to discuss only the second, fourth, and fifth assignments of error, which may all be considered together." Hence the first assignment, not being urged will not be passed upon.
A determination of the proposition that the court erred in taking the case from the jury depends upon the facts proven and the inferences which under the law may be reasonably drawn therefrom, for upon a demurrer to the evidence the plaintiff is entitled to every inference which the evidence, considered in the light most favorable to him, reasonably tends to prove. "A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence." Edmisson v. Drumm-Flato Com. Co., 13 Okl. 440, 73 P. 958. "And on a demurrer to the evidence, the court cannot weigh conflicting evidence, but will treat the evidence as withdrawn which is most favorable to the demurrant." Id.; Kimmell v. Powers, 19 Okl. 339, 91 P. 687; Cole v. Missouri, K. & O. R. Co., 20 Okl. 227, 94 P. 540, 15 L. R. A. (N. S.) 268; Ziska v. Ziska, 20 Okl. 634, 95 P. 254, 23 L. R. A. (N. S.) 1; St. Louis & S. F. R. Co. v. Jamieson, 20 Okl. 654, 95 P. 417; Shawnee Light & Power Co. v. Sears, 21 Okl. 13, 95 P. 449.
The testimony was that a five-story stone and concrete building had been nearly enough completed that it had been accepted and taken possession of by the owners, C. W. and Thos. B. Bliss, and was then being occupied by their tenants. That at this time there still remained some interior finishing to be done, part of which was the construction of a stairway, on which deceased was working at the time of the fatal accident. An elevator, operated by means of a heavy weight, had been installed, and was being used at the time. A space of about 7X17 feet running from the basement to the top of the building had been set apart for the elevator and the stairway. The elevator and weight, which swung at one end of the elevator car, occupied about 6X7 feet of this space, and the stairway, which was being constructed right along and up by the side of the elevator shaft, occupied the remainder of the space. The partition walls between the elevator and stairway had not been put in, thus leaving the space for the stairway and the elevator shaft all open. The deceased was working on the fourth floor, putting in studding for the partition walls between the elevator shaft and the stairway on the third floor. There were to be five pieces of studding put in, one end of which rested on the third floor, and the top ends were being nailed to a 2X6-inch crosspiece, which marked the partition line between the stairway and elevator shaft on the fourth floor. That is, it ran across the space between the stairway and the elevator shaft as the base of the partition wall between them. Three of the studding had already been put in, and deceased was measuring and marking the places for the other two pieces when he was struck and killed by the descending weight.
There had been no floor laid nor any other preparation made across the stairway space for deceased to stand on while measuring the place for and nailing the top ends of the studding. But the elevator shaft and the stairway space were open beneath him down to the second floor on the stairway side, and to the ground floor on the elevator side. It was necessary therefore, to stand either upon the 2X6, which was nailed across the space between the stairway and the elevator shaft, or stand at the end of the elevator shaft upon the floor which surrounded the open space, and reach over and across the open space, in order to do the work required of him. He had stood on this floor at the end of the elevator shaft, opposite to the weight, and to the right of the path of the elevator, and marked and nailed the top ends of three of the studding. But the point for the fourth studding being beyond his reach, and beyond the center of the 2X6 cross-piece, and nearer to the opposite side, and being unable to reach across to that point, and possibly deeming it less hazardous than to stand on the 2X6, he went around to that side, the side on which the weight ran, and from there, standing on the floor which surrounded the open space, he proceeded with the work he had been told to do. However, on this side he could not stand to the left and clear of the weight and reach over as he had from the opposite side, because of a radiator which stood so close to the upright...
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