Chi., R. I. & P. Ry. Co. v. Duran

• Decision Date: 22 July 1913
• Docket Number: Case Number: 2645
• Citation: 1913 OK 467,38 Okla. 719,134 P. 876
• Parties: CHICAGO, R. I. & P. RY. CO. v. DURAN.
• Court: Oklahoma Supreme Court

1913 OK 467

134 P. 876

38 Okla. 719

CHICAGO, R. I. & P. RY. CO. v. DURAN.

Case Number: 2645

Supreme Court of Oklahoma

Decided: July 22, 1913

Syllabus

¶0 1. NEGLIGENCE--"Actionable Negligence." To constitute actionable negligence, where the wrong is not willful and intentional, three essential elements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.

2. SAME--Trial--Submission of Issues--Conformity to Evidence--Evidence. Under section 6 of article 23 of the Constitution (section 355, Williams' Ann. Const. Okla., the question of contributory negligence or assumption of risk in all cases is a question of fact at all times to be left to the jury, but this provision does not relieve the party suing for damages for an alleged injury from the burden of proving that the injury was the proximate result of negligence on the part of the party sought to be charged. (a) Where there is no evidence reasonably tending to show that such party sought to be charged was guilty of negligence, it is error for the trial court to submit such issue to the jury.

3. MASTER AND SERVANT--Injury to Servant--Negligence--Burden of Proof. As a rule the fact of an accident or injury to an employee in the course of his employment carries with it no presumption of negligence on the part of the employer. (a) That the injury or accident was the result of the negligence of the employer is an affirmative fact for such employee to establish by the evidence.

4. SAME--Duty of Master--Safe Appliances--Safe Place to Work--Assumption of Risk. A master is required to exercise proper care and diligence to provide his employee with a reasonably safe place in which to work, with reasonably safe material, tools, and implements with which to work, with reasonably safe material upon which to work, and suitable and competent fellow servants. (a) When the master has so discharged these duties, 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. (b) In this state the doctrine of assumption of risk as it existed at common law as to railroads, street railways, interurban railways, and mining operators has been modified; such employees not assuming the risk incident to the negligence of their fellow servants. Section 254, Williams' Ann. Const. Okla. (c) A further modification in all cases whatsoever in this state exists in that the defense of assumption of risk and contributory negligence is in all cases a question of fact to be left to the jury for their determination.

5. SAME--Assumption of Risk--Question for Jury. Where the master has omitted no duty as such and therefore is free from negligence, no liability attaches to him, as "every risk which an employment involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants is assumed as a matter of law by each of the servants." (a) When the question is that the injury to the employee resulted from an assumed risk which an ordinarily prudent employer would not have exposed the servant to, thereby presenting a question of a breach of duty on the part of the master, and the defense being interposed that the employee, with the knowledge of such omission of duty, entered the employment of the master, expressly or impliedly assuming all the risks resulting from such omission of duty, such omission of duty on the part of the master not having been done in violation of a statute the question as to whether the employee assumed the risk under section 6, art. 23, of the Constitution (section 355, Williams Ann. Const. Okla.) is "a question of fact" to "be left to the jury for its determination." (b) Where a master omits to perform a duty and such omission constituting a violation of the law, though the employee expressly or impliedly contracted to assume the risks resulting from such violation, still the servant did not assume the risk of such injury, as a contract under such state of facts to assume such risk would be void as against public policy.

6.NEGLIGENCE--Carrier--Proximate Cause--Actionable Negligence--Delay in Delivery of Goods. As a rule a party guilty of negligence or an omission of duty should be held responsible for all consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact exist, whether they could be ascertained by reasonable diligence or not, would have thought at the time of the negligent act as reasonably possible, to follow, if they had been suggested to his mind. (a) An agent of C. at L. advised D. that he could procure employment as a bridge carpenter from C. at a certain point,to wit, S. D. had had experience both as a bridge carpenter and section hand. D. shipped his trunk, containing his carpenter tools and carpenter credential certificate to S., expecting to there enter the employment of C. as a bridge carpenter. On reaching S., his trunk not having arrived, he engaged in the service of C., as a section hand, and whilst engaged in such work, in construction of ballast on such road, by a piece of ballast rock striking him in the eye, he was injured. Held, that the injury was not the proximate result of the failure of C. to promptly deliver D.'s trunk at S.

7.MASTER AND SERVANT--Injury to Servant--Sufficiency of Evidence--Negligence. Evidence examined, and held not to show any negligence on the part of the railroad company.

C. O. Blake, H. B. Low, R. J. Roberts, W. H. Moore, and J. H. Woods, for plaintiff in error.

H. H. Smith and W. T. Williams, for defendant in error.

WILLIAMS, J.

¶1 The defendant in error, as plaintiff, sued the plaintiff in error, as defendant, for damages on account of an inquiry alleged to have resulted from said defendant's negligence, wherein judgment was rendered in favor of the plaintiff as against the defendant for $ 1,500. The parties will be herein referred to in the style in which they appeared in the lower court. The allegations of the petition are in park as follows:

"Count 1: * * * This plaintiff was engaged in the service of the defendant at or near * * * working as a section hand, and engaged with others in repairing defendant's said roadbed and keeping the same in a good state of repair * * * under an oral direction and hiring of defendant's local agent. * * * That said oral hiring consisted in said local agent directing this plaintiff to work. * * * That at the time of the injury, as hereinafter alleged, plaintiff was engaged in tamping and driving ballast under the ties of defendant's said track on and along said section * * * for the purpose of leveling said track. That defendant had been furnished and supplied hard, sharp, flinty quartz for such ballast. That on the day plaintiff was injured, as hereinafter alleged, one of defendant's passenger trains on said road was due to pass that part of defendant's said road in a short time; and, a piece of the road being in need of repairing and leveling up, defendant's said section foreman ordered and directed this plaintiff to hurry and repair said track before said train should arrive. That in pursuance of said order this plaintiff made haste to level said ties and track by tamping and driving such ballast under said ties with a steel pick, or other instrument furnished by defendant to this plaintiff for such purpose, and this plaintiff, being inexperienced at such work, and not knowing the danger and hazard of such work and the liability of such rock to splint off and fly as it did, made haste to carry out the order of said Murray and tamp and level said track for said train to pass, and in doing so drove and tamped said rock under said ties with great force and rapidity, and while so doing a piece of rock, or a bit of steel off the pick in plaintiff's hand or the hands of some of his colaborers, was driven with great force into plaintiff's left eye and cut and destroyed plaintiff's said eye, and plaintiff has been totally blind thereof ever since. * * *"

¶2 In count 2 it is in substance alleged: That because he had been sent by the defendant, its agents and servants, to the point where this injury occurred to work in a bridge gang and pursue the line of employment which, he had formerly engaged in, and relying upon the direction and promise of the defendant, its agents and servants, he proceeded to said point, having shipped his tools and credential letter over the defendant's road, which credential letter was such a passport and authority as would cause the agents and servants of said defendant to give him employment with the bridge gang, but when he reached said point the defendant failed to deliver his trunk which he had sent by freight in which was contained said credential letter and tools. That, on account of a lack of funds to pay board and sustain himself until his trunk arrived, he took employment from said defendant as a section hand, being unacquainted with such work and without the knowledge of the extra hazard of said employment, which inexperience was known to the defendant, but with such knowledge defendant failed to give him proper warning of the peril accompanying such employment. The evidence offered to sustain the allegation of the plaintiff is, in substance, to the effect that the plaintiff was 51 years old, carpenter by trade, having worked at bridge work for about four years; that he was sent to Stuart, the point at which he was injured, by defendant's agents; that he went to work as a section hand, having expected to, do carpenter work when he came. to Stuart; that he had worked as a section hand on the I. C. Southern and I. C. Valley roads prior to that time. He testified, also, specifically as follows:

"Q. Now, just

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