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

• Decision Date: 19 November 1912
• Docket Number: Case Number: 2352
• Court: Oklahoma Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. HILL.

1912 OK 716

129 P. 13

36 Okla. 540

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

Case Number: 2352

Supreme Court of Oklahoma

Decided: November 19, 1912

Syllabus

¶0 1. NEGLIGENCE--Action--Question for Jury. Section 6 of article 23 of the Constitution (Williams' Ann. Const. Okla., sec. 355), which provides that "the defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury," constitutes the jury the tribunal to determine these defenses.

2. MASTER AND SERVANT--Injuries to Servant--Action-- Question for Jury. Where the evidence tends to show negligence on the part of the employer, and also shows that the work in which the plaintiff was engaged was work which should be done by two men, and that the employer had furnished an assistant, within reach of the plaintiff, and the plaintiff undertook to do the work alone, without calling or using the assistant, this testimony tends to establish the defense of contributory negligence, and should be submitted to the jury.

3. WITNESSES--Cross-Examination-- Physical Examination. In the trial of a personal injury case, upon the cross-examination of the plaintiff he should be required to answer the question whether he is willing to submit to a physical examination of the injuries by reputable physicians of the community, acting under the appointment of the court.

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

H. H. Smith and M. L. McKenzie, for defendant in error.

AMES, C.

¶1 The plaintiff alleged that he was employed by the defendant as a scratch boss in the shops at Shawnee; that his duties included designing, shaping, and repairing timbers for railway cars; that he was injured while handling a timber about eighteen feet in length and about six inches thick and eight inches wide; that the floor of the room in which he was at work was rotten, and broke with him as he was handling the timber, causing him to fall against a carpenter's horse, the timber falling upon him and producing the injuries complained of; that the defendant was negligent in failing to furnish him a safe place in which to work, on account of the condition of the floor. The petition also alleged that the defendant was negligent in failing to furnish him with competent and sufficient assistants to perform the work in which he was engaged, and in failing to warn him of the dangerous conditions surrounding his work. The answer denied the injuries, denied any negligence, and pleaded assumption of risk and contributory negligence. The court instructed the jury that there was no proof of contributory negligence and withdrew that issue from its consideration. The defendant excepted to this instruction and now assigns it as error. There was evidence tending to show that the work in which the plaintiff was engaged at the time of the injury was what was called a "two-man job"; that the defendant had furnished assistants, who could be secured by the plaintiff by calling for them whenever he desired, and that assistants had never been denied him when requested; that he did not call for assistants at this time, but did the work alone. There was other evidence tending to show that he could do the work alone in safety, and did not need assistants. The defendant claims that his failure to call assistants was negligence which contributed to the injury, and that under section 6 of article 23 of the Constitution this defense should have been submitted to the jury. Section 6 of article 23 (Williams' Ann. Const. Okla. sec. 355) is as follows:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall at all times, be left to the jury."

¶2 In C., R. I. & P. Ry. Co. v. Baroni, 32 Okla. 540, 545, 122 P. 926, 928, we said:

"* * * But this argument tends to establish negligence on the part of the plaintiff contributing to his injury, and the (defense) of contributory negligence, under our Constitution, is to be submitted to the jury. The lawmaking power of the state has the right to provide that the jury shall be the tribunal to determine this question; and it has done so."

¶3 The plaintiff in this case, however, contends that the defense of contributory negligence was properly taken from the jury, because there was no evidence to sustain it, and that the constitutional provision does not require the defense of contributory negligence to be submitted to the jury, except when there is evidence tending to support it. In response to this argument we might inquire how much evidence is necessary. Shall it be evidence reasonably tending to support the defense? If so, the Constitution has not changed the law previously in existence, and the courts would have the same right as before to give peremptory instructions to juries upon the subject. Does it mean that the defense shall be submitted to the jury if there is any evidence tending to support it, whether it reasonably does so or not? Who is to determine whether there is any evidence tending to support the defense? Shall the court say that there is no evidence upon the subject, or is it meant by the Constitution that this defense, whenever presented, shall be submitted to the jury, and that the jury shall determine whether there is any evidence upon the subject, and also whether this evidence reasonably establishes the defense? It is unnecessary, however, in this particular case, to decide this exact question, as there was some evidence tending to show negligence on the part of the plaintiff which should have been submitted to the jury for its consideration. The plaintiff alleged that the defendant was negligent in failing to furnish him with sufficient assistants, and that the defendant knew that the plaintiff did not have sufficient assistants. There was evidence by the plaintiff and his own witnesses showing that assistants were furnished by the defendant, who could be procured by the plaintiff whenever he needed them, upon request; that the work in which he was engaged was work described by some of the witnesses as a "two-man job," meaning that it was work in which the plaintiff should have had assistants. The testimony is uncontradicted that the plaintiff did not call for assistants, but undertook to do the work alone. It is axiomatic that if it would be negligence for the defendant not to furnish assistants that it would likewise be negligence for the plaintiff not to use the assistants when they were furnished, and argument cannot make the proposition plainer. The failure of the plaintiff, therefore, to use the assistants who were provided by the defendant, and undertaking to perform alone work which was a two-man job, might be regarded by the jury as evidence reasonably supporting the defense of contributory negligence. At all events, it was some evidence on the subject; and as this was one of the defenses, and as there was some evidence upon the subject, the defense should not have been taken from the jury. The court has just as much right to instruct the jury that the defense of contributory negligence has been made out, and that its verdict should be for the defendant, as it has to...