Bartlesville Zinc Co. v. James
| Decision Date | 24 July 1917 |
| Docket Number | 7281. |
| Citation | 166 P. 1054,66 Okla. 24,1917 OK 383 |
| Parties | BARTLESVILLE ZINC CO. v. JAMES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
It is not error for the court, upon the conclusion of the evidence for plaintiff in a personal injury suit, where the amount of the damage sustained is not precisely determined by the evidence, to overrule a motion of the defendant for an instructed verdict for plaintiff in a given sum.
Where a motion is made by a defendant for an instructed verdict for the plaintiff in a given sum, which motion is overruled, such motion is an admission of liability, and a motion made immediately thereafter for a directed verdict for the defendant is properly overruled.
A case will not be reversed on account of the admission or refusal to admit evidence, unless such action of the court results in a miscarriage of justice, or constitutes a substantial violation of a constitutional right.
Error in refusing instructions, excepted to and assigned as error but which alleged errors are not argued in brief of complaining party, will be regarded as waived, and will not be considered by this court.
Where injury results to an employé from failure to comply with section 3746, Revised Laws 1910, as to properly guarding machinery, the assumption of risk by the employé cannot be invoked as a defense.
Failure to properly guard machinery, as required by section 3746, Revised Laws 1910, commonly known as the "Factory Act," is actionable negligence.
Where the evidence is in conflict, and there is evidence which reasonably tends to support the verdict, and the jury is properly instructed, and the verdict approved by the trial court, this court will not disturb the verdict.
Where the injury received by reason of a failure to properly guard machinery as required by the "Factory Act" results in the practical loss of an eye of an employé 54 years old an experienced blacksmith, who prior to the time of receiving the said injury had good eyesight, and whose earning capacity was reduced by reason of such injury, a verdict of $1,500 is not excessive.
Commissioners' Opinion, Division No. 1. Error from District Court, Rogers County; T. L. Brown, Judge.
Action by R. T. James against the Bartlesville Zinc Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.
C. B Holtzendorff, of Claremore, V. C. Mieher, of Tulsa, and H Tom Kight and P. W. Holtzendorff, both of Claremore, for plaintiff in error.
H. B. Martin, A. F. Moss, and R. K. Dumbell, all of Tulsa, for defendant in error.
This is an action brought by the defendant in error, hereinafter designated plaintiff, against the plaintiff in error, hereinafter called defendant, to recover for personal injuries alleged to be due to failure of the defendant to properly guard an emery wheel operated in a smelter at Collinsville, in which the plaintiff was an employé.
The uncontradicted evidence is that the plaintiff was 54 years of age, and a blacksmith of much experience; that there were two emery wheels being operated in the plant of the defendant, said wheels being located about 18 inches apart, one of which was used by plaintiff and other employés of defendant who were employed as blacksmiths in said plant "to condition tools," and the other of said wheels was used by other employés of said defendant in sharpening and conditioning sheet iron and coarser materials; that, while the plaintiff was grinding a "coal cutter" at one of the said emery wheels, another employé of the defendant began grinding a piece of iron on the other emery wheel, from which particles flew, and two or three of said particles struck the plaintiff in the eye; that when the said fragments struck plaintiff's eye they caused him pain and partially blinded him; that one of plaintiff's helpers took out of plaintiff's eye one of said particles, a doctor took out another, and in about two months after the injury was inflicted the plaintiff himself took out of his eye a third particle; that immediately after receiving the injury complained of the plaintiff went to Dr. Hill, who examined, dressed, and bound up his eye, and directed him to go to a specialist, and upon this advice and the advice of the superintendent of the defendant he went to see Dr. Morgan, in Sapulpa, and afterwards went to see a Dr. Cook; that his eye continued to hurt him something like five or six months; that the pain was pretty sharp; that plaintiff's eye bothered him so that he could not see his rule to follow up his figures on his square; that he could not see without glasses; that prior to the accident his eyesight was good and strong; that prior to the accident he did not wear glasses to read, but sometimes in his work, when he came in contact with a bright fire, he had used glasses to protect his eyes from the fire; that after the accident he could see with the injured eye only to detect daylight from dark; that he noticed no change in the condition of the injured eye from the time of the injury to the time of the trial; that the plaintiff expended $18.50 for medical services and medicine; that treatment of the injured eye continued from the time the eye was hurt until a short time prior to the trial; that at the time he was injured he was earning $3 per day, or 30 cents an hour; that after the injury he worked for the defendant several months, when he was discharged, and to the best of his knowledge he was discharged because he could not do the work any more.
Exceptions were saved by the defendant to the admission and to the rejection of evidence, which said evidence we deem it unnecessary to set out. Upon the conclusion of the evidence for the plaintiff the defendant made the following motion:
"Comes now the defendant, and moves the court to instruct the jury to find a verdict in favor of the plaintiff and against the defendant in the sum of $5 in this case, for the reason that there has been no damage done for any sum over $5."
This was refused. Thereupon the defendant moved the court to instruct the jury:
"That under the law and evidence in this case it would be their duty to return a verdict in favor of the defendant and against the plaintiff in this case."
Which motion was overruled and excepted to.
The evidence, which we deem not necessary to set out, as to whether or not the emery wheel, which was the agency which caused the injury complained of, was in conflict. We are unable from the record to verify the statement in defendant's brief that at the close of defendant's evidence the defendant demurred to the evidence which was overruled. Had such demurrer been interposed, it would have been proper to overrule the same.
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