Britt v. Doty

• Decision Date: 05 June 1945
• Docket Number: 31654.
• Citation: 161 P.2d 521,195 Okla. 620,1945 OK 179
• Parties: BRITT et al. v. DOTY.
• Court: Oklahoma Supreme Court

161 P.2d 521

195 Okla. 620, 1945 OK 179

BRITT et al. v. DOTY.

No. 31654.

Supreme Court of Oklahoma

June 5, 1945

Rehearing Denied June 26, 1945.

Appeal from District Court, Ottawa County; Wm. M. Thomas, Judge.

Action by Mayme Doty, as administratrix of the estate of James Neal Doty, deceased, against Carl M. Britt and another copartners, doing business as Britt & Britt Milling Company to recover damages for wrongful death. Judgment for plaintiff, and defendants appeal.

Affirmed.

Syllabus by the Court.

1. It is the duty of the master to warn his employees of dangers arising out of the progress of the work, which are known to him and unknown to them, and this is a nondelegable duty.

2. If there is any testimony reasonably tending to support the verdict of the jury, and said verdict has been approved by the trial court the judgment will not be disturbed on appeal.

Ray McNaughton, of Miami, for plaintiffs in error.

A. L Commons and Gayle Pickens, both of Miami, for defendant in error.

PER CURIAM.

This action was commenced by Mayme Doty, administratrix of the estate of James Neal Doty, deceased, plaintiff to recover damages against the defendants for the wrongful death of James Neal Doty. The case was tried on the second amended petition in which it is alleged that the death occurred by reason of the failure to notify Doty of the dangerous condition of a tailing pile. The defendant demurred to the evidence and moved for directed verdict. The court overruled the motion. The cause was submitted to the jury and a verdict for $10,000 was returned; judgment being entered thereon, the defendants appealed and their sole allegation presented in the brief is the error in overruling the demurrer to the evidence and the motion for directed verdict.

The record discloses that Henry Wade, James Doty, Fred Holt LeRoy Wade and Joe Nolan were employed by the defendants to load chat from a tailing pile known as the Velie-Lion Chat Pile. This chat was delivered by truck to a mill a short distance away. Joe Nolan was the powder man. His duties consisted of preparing dynamite discharges referred to as shots for loosening the material from the tailing pile. LeRoy Wade was the foreman in charge of the group and ran the shovel operated to load the trucks. The remaining three, including Doty, were truck drivers. Joe Nolan stated that he put two shots in the tailing pile and one shot was put near a pipe to attempt to remove the pipe so that the trucks could be loaded on both sides of the shovel. This pipe had been in the way and the common desire was to have it removed to facilitate loading. Some time after the shots were prepared Doty left to take a load of tailing to the mill. The testimony is in irreconcilable conflict as to when Doty left. Fred Holt testified for the plaintiff stating that Doty left before the shots were fired. The testimony of witnesses for the defendant is to the contrary. When Doty returned to the premises with his truck he parked it and in company with Fred Holt went to the pipe and attempted to test the pipe to determine if the charge of dynamite placed against the pipe had loosened it. While he was there the tailing pile began to fall. Fred Holt saw the same in time to run away from the danger but Doty was smothered under the same which resulted in his death.

Defendants cite and rely upon Earl, Adm'x, v. Oklahoma City-Ada-Atoka Ry. Co., 187 Okl. 100, 101 P.2d 249; Kill v. Summitt Drilling Co., 153 Okl. 197, 5 P.2d 346; Phillips v. Tackett, 168 Okl. 143, 32 P.2d 29; McMillin v. Barton-Robison Convoy Co., 182 Okl. 553, 78 P.2d 789, together with a number of other cases and state that the court erred in not sustaining the motions for the reason that there is no evidence in the record of any negligence on the part of the defendants. In Earl, Adm'x, v. Oklahoma City-Ada-Atoka Ry. Co., supra, any one of the road maintenance men could have observed the condition of the roadway which caused the death of the deceased including the deceased. In the case at bar only those who knew of the dangerous condition could have observed the condition of the tailing pile. It was a question of fact whether Doty knew of the condition of the tailing pile or should have been informed by LeRoy Wade in charge of the job or some other person who was there and had knowledge of the condition of the tailing pile due to the recent shots. The situation in Earl, Adm'x, v. Oklahoma City-Ada-Atoka Ry. Co., supra, could not be applicable unless we assume all five of the men were present at the time the shots were fired and all owed a common duty to watch the tailing. This is the controverted question of fact which was submitted to the jury. In Phillips v. Tackett, supra, plaintiff was injured while pulling stumps. It was admitted by the plaintiff that the vice principal Howard warned him of the only dangerous and hidden condition of the apparatus with which he was working. The defect Howard was held not to have warned of was a patent and obvious defect. The case is not applicable to the fact situation here involved. In McMillin v. Barton-Robison Convoy Co., supra, robbers illegally in possession of defendant's premises murdered plaintiff's intestate. No duty of defendant was shown to exist.

The remaining cases can likewise be distinguished unless in the case of Kill v. Summitt Drilling Co., supra. This case is often cited in vice-principal cases. See City of Edmond v. Washam, 190 Okl. 140, 121 P.2d 300. We are of the opinion and hold that where a duty is shown such as a duty to furnish a safe place to work, or a duty to warn of an inherently dangerous condition, and there is evidence of a neglect of such duty, a discussion of the corresponding or relative duty of the plaintiff is an unwarranted invasion of the province of the jury under art. 23, sec. 6 of the Constitution, and whether Doty was negligent or whether the negligence contributed to the...