Chi., R. I. & P. Ry. Co. v. Wright
| Decision Date | 06 August 1913 |
| Docket Number | Case Number: 2709 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. WRIGHT. |
| Court | Oklahoma Supreme Court |
¶0 1. MASTER AND SERVANT--Duties of Master--Safe Appliances. It is a nondelegable duty, owing by the employer to the employee, to provide the latter with reasonably safe machinery, tools, and appliances with which to do his work and a reasonably safe place in which to work, taking into consideration the nature and character of the work to be performed and the dangers and hazards ordinarily arising therefrom.
2. SAME--Injuries to Servant--Safe Appliances--Duty to Repair. Equally important with the duty of furnishing reasonably safe appliances and places to work, in the first instance, is that of maintaining them in such condition, and making all necessary repairs thereto, for such duty is a continuing one, rendering the employer liable for negligence for failure so to do; he being held to the exercise of a reasonable diligence in this respect.
3. SAME--Defective Appliances. Where a defective step, by means of which an engineer was accustomed to mount and descend from a railway engine, was twice reported as in need of repairs, and where there was at hand ample opportunity for making the repairs, and which would have required but few minutes actual time, and where, on the day following the making of the second report, the engine, partially repaired, was furnished the engineer for use, and where, at the time he was informed by the hostler delivering the engine that it was all O. K., and sufficient means and opportunity were not furnished the engineer to make a thorough inspection thereof on his own account, and where it further appeared that prior thereto the employer had usually promptly discharged its duty in making needed repairs, so reported to it, and the engineer in going to work, without knowledge of the master's neglect of duty, assumed that the step had been repaired, and whereby, on account of said step not being repaired, the engineer fell therefrom and was severely injured, a verdict for damages against the employer, where the foregoing facts are proven, is sustained by sufficient evidence, and will not be disturbed on appeal.
4. SAME--Contributory Negligence. The fact that the employer may have imposed upon the plaintiff the duty of making a personal inspection of an engine before using it would, if true, and standing alone, and without sufficient excuse for failure to so inspect, constitute contributory negligence; yet, the defense of contributory negligence being a question of fact for the jury, upon that question the employer is concluded by the jury's verdict, as in other cases involving a question of fact.
C. O. Blake, H. B. Low, R. J. Roberts, W. H. Moore, and J. H. Woods, for plaintiff in error.
W. N. Maben, for defendant in error.
¶1 In a trial in the district court of Pottawatomie county, plaintiff was given a judgment against defendant railway company for $ 8,000 for personal injuries sustained by the former while in the employ of the latter. From the evidence it appears that plaintiff was an engineer in the service of the defendant company, and was at the time complained of engaged in running a switch engine in its railway yards at Shawnee. Plaintiff's working hours were from 6:30 p. m. to 5:30 a. m., with an hour off for lunch at midnight. On the night of February 18, 1910, he used engine number 176. On quitting work in the morning it was the custom to make out a written work report, showing, among other things, the repairs needed on the engine in use during the previous night. On the morning of the 19th of February a report was filled out, which is in part as follows:
¶2 The company had designated a hook in the register room on which to file engineer's work reports, and where they were filed upon being made out and signed by the engineer. On the night of the 19th the plaintiff again used engine number 176, and on the following morning made out his report, showing the following repairs needed:
¶3 This report was signed by the engineer, and filed in the manner heretofore described. The reports so made out and filed were delivered to the roundhouse foreman for attention. On the night of the 20th a different engine, number 78, was used; but, on going to work on the night of the 21st, engine 176 was again furnished for service. Plaintiff had not seen this engine from the morning of the 20th until he went to work on the latter evening. When the engine was turned over to him by the hostler, the latter remarked that it was late, somewhere about 6:45, and informed plaintiff that the engine was all O. K. Both while the engine was on the turntable, and while being coaled, in order to save delay, plaintiff, aided by the light of a torch, oiled the drivers and boxes of the engine. After taking charge of the engine, he walked around it from the left to the right side, looking at the front end of the main rod key to see if it had been keyed up to meet his last report, and while so doing noticed that some one, either the engineer on the day shift or the roundhouse employees, had been hammering on the key. Plaintiff, according to his recollection, then got upon the engine from the right-hand side, blew the whistle for the switchman, and, after the fireman had mounted, it was backed from the roundhouse lead to the shop lead, and headed east down the latter lead to the water crane, where water was taken. From there the engine was backed up three or four rails length on a cut-off that led to the main line track, where a freight train was standing. Plaintiff again lit his torch, and set the feeds to the lubricator. About the time this work was finished, the torch, being leaky and in bad condition, went out. The 7:15 passenger train was then due; but, on account of the main line track being blocked by the freight train, the switch engine under plaintiff's charge could not get up to the depot to work the passenger train. While waiting alongside the freight for it to clear, it occurred to plaintiff that he had not opened up his sand pipes, which it appears had not been in good working condition. Picking up a small money-wrench in one hand, plaintiff started to get off the engine, catching hold of the railing and stepping with one foot on the defective step; when the other foot was raised, and his weight thrown on said step, by reason of its defective condition his foot gave way and slipped down, and his heel hung in the step, and he was thrown to the ground, falling on the main line, a distance of about four or five feet, between two cars of the main line freight train. At this juncture the freight train was set in motion, and before plaintiff could extricate himself from his perilous position, the wheel or wheels of one of the cars ran over one of his hands, necessitating its amputation. The night was dark, and plaintiff had no light; the oil in his torch having all leaked out. It was shown by the testimony that the defendant company had at the time a number of employees in its shops whose duty it was to inspect and make repairs on engines and other railway equipment. The tank step complained of was about eighteen inches long and six inches wide, and one inch thick, the foot thereof being of oak, securely strapped and bolted at the front and to the side of the tank, back of the engine cab. This step was split; about half of it being entirely gone. Neither the engineer nor Burnett, the fireman, had noticed on the night in question that the step had not been repaired. There was evidence tending to show that it would have taken about ten minutes in which to make the necessary repairs to the step. On behalf of plaintiff, in addition to the testimony of the two physicians, the following witnesses testified: Charley Bethel, hostler, who turned over the engine to plaintiff on the night of the accident; Gordon G. Skelton, and J. H. Douglas, fireman and engineer, respectively, using said engine on the day shift; and Frank E. Burnett, and plaintiff, fireman and engineer, respectively, of the engine at the time of the accident. At the conclusion of plaintiff's testimony, defendant demurred to the evidence, which demurrer was overruled. No evidence was offered on the part of the defendant, and a peremptory instruction to direct a verdict for defendant was asked and overruled. While numerous errors are assigned, but two are argued in the brief, and it will be necessary, therefore, only to consider the question of the sufficiency of the evidence to sustain the verdict. The master is bound to provide his servants with a reasonably safe place in which to work, with reasonably safe machinery, tools, and appliances with which to work, with reasonably safe material upon which to work, and suitable and competent fellow servants. When the master has so discharged these duties, then at common law the servant assumes all the risks and hazards incident to the particular employment or to the performance of the particular work, including those risks and hazards resulting from the negligence and carelessness of his fellow servants. Neeley v. Southwestern Cotton Seed Oil Co., 13 Okla. 356, 75 P. 537, 64 L.R.A. 145; McCabe & Steen Construction Co. v. Wilson, 17 Okla. 355, 87 P. 320; Coalgate Co. v. Hurst, 25 Okla. 588, 107 P. 657; Choctaw Electric Co. v....
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