Beasley v. Bond, Case Number: 24425

Citation48 P.2d 299,173 Okla. 355,1935 OK 651
Decision Date11 June 1935
Docket NumberCase Number: 24425
PartiesBEASLEY v. BOND
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. EVIDENCE - Competency of Opinions of Experts.

In a case where the subject-matter is one with which the experience and common judgment of the jurors are insufficient to enable them to reach a proper conclusion from the primary facts, there becomes competent, as evidence, the opinion of one who from study and experience is an expert therein.

2. MASTER AND SERVANT - Negligence in Failure to Furnish Sufficient Fellow Servants to Do Work Safely.

Master failing to furnish employees with sufficient number of fellow servants to safely do the work is liable to employee injured as result of such negligence.

3. SAME - Evidence of Other and Better Methods of Accomplishing Work Admissible.

On the issue of whether master has failed to provide a safe and proper method of accomplishing the work in which injured employee was engaged, evidence of other and better methods is admissible even though master has shown he used the method customarily adopted by others in same business.

4. SAME - Negligence in Failure to Provide Safe Tools and Machinery.

Master failing to use reasonable care in providing safe tools, machinery, and appliances with which to work is liable to employee injured by such negligence.

5. SAME - Nonliability of Master Where Suitable Tool for Particular Use Is Used for Purpose Unsuitable.

Where the tool or appliance, the defective condition of which caused the injury, is suitable to the particular use for which it was furnished, the master is not liable for an injury caused by its use for some other purpose to which it is unsuitable.

6. SAME - Liability of Master Where Improper Use of Appliances Is Due to His Negligence.

Master cannot free himself from liability for injuries caused by an improper use of the appliances which he has furnished, when that use is directed by him or inadvertently arises by reason of his own negligence.

7. SAME - Question for Jury Whether Negligence of Master Is Proximate Cause of Injury.

Question of whether a negligent act involving breach of duty owing by master to servant is proximate cause of injury is one of fact for jury, if there is evidence reasonably tending to prove same.

8. SAME - Liability of Master Whose Negligence Concurred With That of Fellow Servant.

Master is liable for injuries to servant due to the concurring negligence of the master and a fellow servant in cases where the injury would probably not have occurred but for the negligence of the master.

9. JURY - Voir Dire Examination in Personal Injury Suit - Right of Plaintiff to Question Jurors as to Their Connection With Indemnity Insurance Companies.

In the voir dire examination of jurors in a personal injury case, counsel for plaintiff may interrogate prospective jurors with respect to their interest in or connection with indemnity insurance companies, so long as he acts in good faith for the purpose only of ascertaining the qualifications of the jurors, and not for the purpose of informing them that an insurance company is back of the defendant.

10. MASTER AND SERVANT - Evidence Held Insufficient to Disprove Relationship of Independent Contractor.

Evidence that independent contractor maintained desk in contractee's office, free of rent, and sometimes used contractee's clerical help, stored part of his own appliances in contractee's material yard, and that contractee had no construction superintendent after independent contractor entered construction business, is insufficient to sustain finding that the independent contract is a subterfuge hiding relationship of master and servant, if it is otherwise established by positive evidence that the contract and the practice thereunder created the relationship of independent contractor and contractee.

11. SAME - "Independent Contractor" Defined.

An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the results of the work.

12. SAME - Statutes Requiring Furnishing of Safe Appliances and Places to Work Held not to Eliminate Defense of Independent Contractor.

Sections 10886 to 10889, inclusive, O. S. 1931, placing the duty to provide for laborers' safe appliances and places to work, upon "any contractor or other person having charge" of the work, applies only to those having actual charge thereof and does not eliminate the defense of independent contractor where the contractee is not present and exercises no control over the work nor in the choice of appliances used.

Appeal from District Court, Tulsa County; R.K. Bridges, Special Judge.

Action by Mrs. Polly Bond against Jeff Beasley, doing business as the Beasley Construction Company, and against Muskogee Iron Works. Judgment against both defendants. Both defendants appeal. Affirmed as to Jeff Beasley, doing business as Beasley Construction Company; reversed and remanded as to Muskogee Iron Works.

Allen, Underwood & Canterbury and Paul Pinson, for plaintiff in error Jeff Beasley.

C.A. Summers, Reynolds, Williams & Ridings, and John Barry, for plaintiff in error Muskogee Iron Works.

A.F. Moss and H.R. Young, for defendant in error.

PHELPS, J.

¶1 The plaintiff obtained a verdict and judgment of $20,000 against the defendants, Jeff Beasley and Muskogee Iron Works, for the death of her husband, whom she alleged lost his life by reason of defendants' negligence.

¶2 The deceased was an experienced steel structural worker who was employed by Jeff Beasley, doing business as the Beasley Construction Company. Beasley's crew of five men were engaged in dismantling and taking down a large steel water tank in Miami, Okla. The bottom of the tank rested some 90 feet above the ground, supported by four fabricated steel supports or legs, which extended slightly outward from the vertical as they approached the ground, somewhat as the four legs of an oil well derrick. The work of dismantling, from the top down, had proceeded to the point where the entire tank and the top section of the tower had been taken apart and lowered, leaving remaining the first two "stories" or "bents" of the tower. These bents, as they are called, are horizontal supporting iron beams, running from leg to leg, and supporting said legs and holding them rigid. The sections of the upright legs appear to have been joined together at the places where the horizontal beams (bents) were fastened onto said legs and to each other.

¶3 The work of lowering the various pieces of material was done by means of an engine hoist, pulleys and a gin pole. Such a gin pole as was here used consists of an ordinary wooden or iron pole, the butt of which is fastened to some supporting portion of the structure, with the pole extending vertically upward. Long guy wires or ropes are fastened to the top of the pole, leading outward and downward at a slight angle, and are fastened to objects such as trees, at a considerable distance; this to steady the pole. For the use of those who are working immediately around the pole they have also a "lazy line," a piece of rope which can be utilized as an auxiliary means of controlling its position. One or more pulleys are fastened to the top of the pole and through these pulleys there passes a cable. One end of the cable is fastened on the winch or revolving drum which is operated by the engine on the ground. The other end of the cable is attached to the particular piece of material which is being raised or lowered. The raising or lowering is controlled by the engine.

¶4 Shortly before this accident occurred the gin pole was standing vertical on the southwest corner of the remaining portion of the tower. The butt of the pole had been pried off the horizontal girder and was resting in its chain supports some three or four feet below the girder, on the inside of the square formed by the girders, within a few feet of the southwest corner thereof. They were beginning to lower the pole to the next set of girders below, so that when they should get it there they could fasten it upright and use it as a support for the lowering of the pieces of girders from which it had just been removed, and also thereby lower the four sections of the legs between those two girders.

¶5 An employee by the name of Spillman was perched on the southwest corner of the remaining portion of the structure, 60 feet from the ground. Near him was the gin pole, fastened in its chain moorings just inside of the corner of the framework with its butt three or four feet below the girders upon which Spillman was sitting. Plaintiff's husband, Bond, had just walked from said southwest corner, over to the southeast corner, and had taken the lazy line with him and tied it to the east girder. Then Bond took his station on the top of the southeast corner, just across from Spillman. The evidence shows that at this time the guy rope running from the top of the pole, out to the east, was not in use. The guy rope running to the south was tied to some object about 150 feet away, but no one was handling it. The guy rope running to the north was fastened to some stationary object at its north end and was being handled by another employee by the name of Easter. Easter had been "riding" this guy line. By "riding" is meant the act of sitting on the rope when it is desired to tighten or take the slack out of said guy line. For instance, should the pole be leaning to the south it could be made vertical by shortening the length of the north guy line, or sitting on the line. The guy line to the west had been tied to a tree and was being "ridden" by the foreman, Garrett. So the north guy line and the west guy line were being handled by one man each, the south guy line was unmanned, and there was no east guy line. The pole was leaning slightly from the vertical toward the southeast.

¶6 It was the custom for the men on top to shout...

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