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

• Decision Date: 05 April 1916
• Docket Number: Case Number: 6397
• Citation: 1916 OK 410,157 P. 349,57 Okla. 688
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R.I. & P. RY. CO. v. SCHANDS.

1916 OK 410

157 P. 349

57 Okla. 688

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

Case Number: 6397

Supreme Court of Oklahoma

Decided: April 5, 1916

Syllabus

¶0 1. MASTER AND SERVANT--Injuries to Servant--Safe Place to Work. Although a servant assumes the known and obvious increased hazards of a work which, by reason of the character of the work, becomes more dangerous as the work progresses, a master in such case is not absolved from any duty to furnish a safe place to work, but must use ordinary care to make the where his servant works as safe as it can be made under the conditions of the work to be performed.

2. SAME. The fact that there may be dangers connected with the general class of work the servant is directed to perform, which ordinary care upon the part of the master cannot remove, does not excuse him from liability for injuries due to danger which the exercise of ordinary care would remove.

3. NEGLIGENCE--Definition--Question for Jury. Negligence is the absence of care according to the circumstances of the case, and is always a question for the jury when reasonable men may differ as to the facts or as to the inferences to be drawn from them.

Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.

Action by E. A. Schands against the Chicago, Rock Island & Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

C. O. Blake, R. J. Roberts, W. H. Moore, and J. G. Gamble, for plaintiff in error.

W. S. Pendleton, for defendant in error.

BURFORD, C.

¶1 In this action, E. A. Schands alleges that while engaged as a car repairer in the Rock Island shops at Shawnee, Okla., he was directed to assist in stripping the siding, window casings, etc., from an old coach in order that it might be repaired; that While engaged in the work it was necessary and proper for him to sit upon a scaffold near the car, and that in endeavoring to place himself in that position he caught hold of a "subsill" of one of the windows in said car, which came away, causing him to fall and break his arm, and sustain other injuries. He alleges that a fellow servant had, without his knowledge, removed all the screws and nails which held said subsill in place, and had not removed the subsill itself, but had left it in place and apparently solid; he alleged that it was the duty of the defendant's servant, who loosened the sill, to immediately remove the same, and that leaving it in the position described was negligence which proximately caused his injury.

¶2 There are several assignments of error, but all are controlled by the contention of plaintiff in error that the rule requiring the master to exercise ordinary care to furnish the servant a safe place to work does not apply with respect to dangers arising in the progress of the work for which the servant is employed, or by reason of the constantly changing condition of such work. Many cases and texts are cited in support of this contention. We have carefully examined them and are of the opinion that the doctrine therein announced does not go to the extent urged. These cases deny liability either upon the ground of negligence of a fellow servant, which as to the defendant is eliminated by the Constitution of this state, or hold that the known or obvious extraordinary dangers incident to repairing structures already dangerous or unsafe, or arising from the progress of a dangerous work, are assumed by the workman, which question in this state is ordinarily one for the jury. Here the court may instruct the jury as to what constitutes assumption of the risk, but cannot, as in other states, say as a matter of law that the servant did or did not assume any certain risk.

¶3 In Ft....