Atchison, T. & S. F. Ry. Co. v. Kennard
| Decision Date | 26 March 1946 |
| Docket Number | 31565. |
| Citation | 181 P.2d 234,199 Okla. 1,1946 OK 96 |
| Parties | ATCHISON, T. & S. F. RY. CO. et al. v. KENNARD. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 11, 1946.
Second Petition for Rehearing Denied June 17, 1947.
Appeal from District Court, Creek County; C. O. Beaver, Judge.
Action by Osie Kennard, on behalf of herself and her minor children against Atchison, Topeka & Santa Fe Railway Company, a corporation, and E. M. Campbell & Company, a copartnership composed of E. M. Campbell and J. D. Amsey, for death of Herbert Kennard, plaintiff's husband. From an adverse judgment, defendants appeal.
Reversed.
Syllabus by the Court.
1. The rule imposing upon the master the non-delegable duty to furnish a reasonably safe place to work, reasonably competent fellow servants, and reasonably safe tools and appliances with which to work, has no application to a skilled and experienced vice principal entrusted by the employer with complete control and supervision of the work and the method of doing it, and upon whom rests the responsibility of advising the employer if additional tools, appliances or helpers are necessary for the safe performance of the work in the absence of advice by the vice principal that such are needed and a request that they be furnished.
2. Negligence of the defendant to be actionable must be the proximate cause of the injury and where, in an action for damages for death, the evidence clearly shows that the death of plaintiff's decedent was not due to any negligence on the part of the defendant, the defendant's motion for a directed verdict should be sustained.
3. Record examined, and held, that under the facts as established by the evidence, the rule that one who has through his negligence, endangered the safety of another may be held liable for injuries sustained by a third person in attempting to rescue such other from injury, has no application.
I. J. Underwood, Paul Pinson, and M. C. Rodolf, all of Tulsa, for plaintiff in error, Atchison, T. & S. F. Ry. Co.
George F. Short, Welcome D. Pierson, George E. Fisher, and John F. Reed, all of Oklahoma City, for plaintiff in error, E. M. Campbell & Co.
Speakman & Speakman and Fred L. Patrick, all of Sapulpa, for defendant in error.
This action was commenced on March 23, 1942, by the plaintiff, Osie Kennard, on behalf of herself and her four minor children, against the defendants, Atchison, Topeka & Santa Fe Railway Company, a corporation, E. M. Campbell & Company, a co-partnership composed of E. M. Campbell and J. D. Amsey, and Oklahoma Natural Gas Company, a corporation, to recover damages for the death of her husband, Herbert Kennard. The trial court sustained a motion of the Oklahoma Natural Gas Company to quash the service of summons upon it, and it went out of the case for default of further service. Herein Osie Kennard will be referred to as plaintiff, the defendant Atchison, Topeka & Santa Fe Railway Company as the railroad company, and E. M. Campbell & Company as the construction company. The trial court overruled the demurrers of the railroad company and the construction company to the plaintiff's amended petition, overruled their demurrers to the plaintiff's evidence, denied their motions for instructed verdict at the close of all the evidence, and submitted the case to the jury, which returned a verdict in favor of the plaintiff. The railroad company and the construction company appeal.
The essential facts established by the evidence are undisputed. From the evidence it appears that on the 15th day of August, 1940, the construction company was engaged in the construction of a pipe line conduit or tunnel for the Oklahoma Natural Gas Company under the tracks of the railroad company some four or five miles north of the city of Edmond, Oklahoma; that the deceased, Herbert Kennard, was in charge of the crew engaged in this operation, having full and complete supervision of the digging of said tunnel and full and complete control of the men under him, including the right to hire and fire men for such purpose; that the crew consisted of six men in addition to Kennard; that the tunnel was some twenty-six inches in diameter and was dug by the use of 'sharpshooters,' one person working from each side of the railroad track, the six men working three on each side, one man on each side working the 'sharpshooter' and one man at the mouth of the tunnel throwing the dirt out into a ditch, the 'sharpshooters' being so guided that the holes dug from each side were to meet and thus form a complete tunnel. The evidence further established that at about 5:00 o'clock in the afternoon a Santa Fe passenger train coming from the north and running some forty or fifty miles per hour approached the place where the tunnel was being dug, the tunnel at that time being almost completed. The track at this point was practically level and was straight for some five hundred feet due north of the site of the tunnel. North of this five hundred feet of straightaway track the railroad proceeded in a slight curve through a cut around the base of a small hill. It further appeared that Kennard anticipated that in the construction of the tunnel, trains passing over it might loosen the earth and cause the tunnel to cave, thus endangering the men who were in the tunnel, and that he had a man outside of the tunnel on the east side of the track to warn those in the east part of the tunnel of the approach of trains in order that they might leave the tunnel and escape any danger from such caving. When the train above mentioned came into view, a man at the entrance of the tunnel on the west side of the railroad called out that a train was approaching. Kennard at that time was just inside of the mouth of the west part of the tunnel attempting to ascertain whether the hole was being so dug that it would meet the one coming from the east side. Upon being notified of the approach of the train he came out of the tunnel, ran back about thirty-five feet to the end of the ditch outside of the tunnel, and then ran up to the railroad track shouting at the men on the east side of the track, apparently to warn them of the approach of the train. He reached the railroad track very shortly before the train arrived, and stepped one foot over the rail nearest him, looking across at the mouth of the tunnel on the other side and apparently shouting at the men there. He then stepped back off the track and stood there until the engine reached him, but standing so close to the track that the cylinder head on the side of the engine nearest him struck him and killed him almost instantly. The witnesses differ as to the length of time he stood beside the track before being struck by the train, but from their testimony it appears that he had sufficient time to step farther back to a place of safety. All the witnesses testified that he did not look at the train as it approached, but continued to look across the track. The engineer of the train testified that when he first saw Kennard go upon the track it was absolutely impossible for him to slow the train or do anything to avoid striking Kennard, and his testimony is uncontradicted. As to the danger to the men in the tunnels from caving occasioned by the passage of trains, the witness Dewees testified that the soil was sandy and liable to cave and that at one time when a train passed a little of the earth was shaken off. Several witnesses who were standing on the right-of-way testified that when Kennard started up on the tracks they shouted at him to come back, but he paid no attention.
A witness named Friend, who was working inside the east tunnel at the time the train approached, testified that on this particular occasion the man outside of the tunnel did not warn him of the approach of the train, but that he heard the rumble and felt the vibration and immediately scrambled out of the tunnel, emerging therefrom just as the last coach crossed it. It does not appear that Kennard knew that no warning had been given the men in the east part of the tunnel.
Both the railroad company and the construction company assign as error the overruling of their respective motions for an instructed verdict. Since, after careful consideration, we are of the opinion that the trial court erred in overruling these motions, it is unnecessary to consider the other assignments of error.
As to the liability of the construction company, the facts establish that Kennard in the digging of this tunnel was a superior servant or vice principal of the construction company, under the rule announced in City of Edmond v Washam, 190 Okl. 140, 121 P.2d 300. While it appears that J. D. Amsey was the general superintendent of the construction company, the evidence shows that he exercised no authority over Kennard in the digging of this tunnel except to show Kennard where the tunnel was to be dug; that Kennard alone chose the method of doing the work; was the sole judge of the number of men to be employed and their qualifications; and that he was under no supervision, direction or control by the construction company during the operation. He was shown to be an experienced man in...
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