Chi., R. I. & P. Ry. Co. v. Cheek
| Decision Date | 16 December 1924 |
| Docket Number | Case Number: 14681 |
| Citation | 105 Okla. 91,1924 OK 1124,231 P. 1078 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. CHEEK. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Review--Sufficiency of Evidence.
In the trial of a law case, where there is any competent evidence in the record which reasonably supports the allegations of the petition, and which would reasonably support a verdict and judgment for the pleader, a demurrer to the evidence, or a motion for a directed verdict, by the adverse party, should be overruled; and the verdict for such party should not be disturbed on appeal because of the insufficiency of the evidence.
2. Trial--Province of Judge and Jury--Sufficiency of Evidence.
Whether there is any competent evidence in the record which supports the allegations of the pleader producing the evidence, and whether the evidence adduced will support a verdict in his favor, is a question of law for the court. If, as a matter of law, any such evidence was adduced at the trial, its weight and sufficiency is for the consideration of the jury.
3. Master and Servant--Duty of Master--Safe Working Conditions.
Where the relationship of master and servant exists, it is the duty of the master to exercise reasonable and ordinary care to furnish the servant with reasonably safe conditions under which to work; and the employer will be presumed to be familiar with dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged.
4. Same--Injuries to Servant--Requisites for Liability.
Where a servant brings action against the master for personal injuries, it is incumbent upon the servant to establish his right to recover by adducing evidence tending to prove, first, that a duty was owing by the master to the servant; second, that such duty had been breached; and third, that such breach resulted in injury and damages; otherwise a verdict and judgment for the servant against the master cannot be upheld.
5. Same--Injuries to Section Hand from Handling Creosoted Crossties.
In an action by a section hand against his employer, railroad company, where there is proof adduced by such servant tending to prove that the employer required the servant and others to handle railroad ties dripping wet with a strong solution of creosote, shown to be known to medical men as a poisonous solution calculated to produce a sore upon the flesh like a burn; and no warning was given of such danger; and no tools were furnished to handle the ties reasonably calculated to protect the servant from getting the creosote upon his flesh; and the servant did not know of the danger from handling the creosoted ties; and the servant got the creosote upon his person and a sore like a burn was produced, resulting in loss of time, doctor and medical bills incurred, and physical pain and suffering endured, such evidence presented a question of fact for the jury to determine whether or not a duty was owing by the master to the servant, and if so, whether such duty had been breached by the master, resulting in injury and damage.
6. Same.
Where the defendant, railroad company, required the plaintiff, its servant, to handle with his hands, crossties dripping wet with a strong solution of creosote, and no warning was given of the danger in getting the ties against his person in handling them; and the servant had no knowledge of the danger in so handling the ties, the servant had a right to presume that it was safe to handle the ties.
7. Same -- Contributory Negligence--Federal Employers' Liability Act.
In a personal injury case brought by a servant against a master and the relationship of such master and servant is controlled by the federal Employers' Liability Act (Act of April 22, 1908, chap. 149, U.S. Comp. Stats., sections 8657-8665), contributory negligence does not constitute a defense, but should be considered only in mitigation of damages; and the defense of assumption of risk is controlled by the rule of the common law.
8. Same-- Assumption of Risk--Question for Jury or Court.
Under the Oklahoma law, the defense of assumption of risk is made a question of fact for the jury; but the common-law rule is that the servant assumes the risks incident to the business in which he is engaged of which he knew, or which should be known to a reasonable person by the exercise of ordinary care; and where there is no substantial conflict in the evidence and reasonable men generally would infer that the servant knew the hazard or danger, or if a reasonable person, by the exercise of ordinary care, could have known of such hazard or danger, a question, of law is presented for the court; but where there is conflict in the evidence as to such defense, and where reasonable men might draw different conclusions as to the knowledge of the servant, or what might or should be known to a reasonable person in the exercise of ordinary care under the circumstances presented, a question of fact is presented by the evidence upon such defense, and is for the consideration of the jury.
9. Same -- Contributory Negligence -- Instruction--Harmless Error.
In a suit by a servant against the master, where the relationship of the parties is controlled by the federal Employers' Liability Act, and contributory negligence of the servant is not pleaded by the master in mitigation of damages, and no proof of contributory negligence is offered in the case by the master, and it does not appear from the servant's evidence, by inference or otherwise, that the servant was contributorily negligent, an instruction which submits to the jury the defense of contributory negligence is not prejudicial to the rights of the master.
10. Same--Assumption of Risk -- Instruction.
In the trial of a personal injury case between a servant, plaintiff, and the master, railroad company, defendant, where the relationship of the parties is controlled by the federal Employers' Liability Act, and no evidence is offered by the master upon the defense of assumption of risk, and the evidence offered by the servant is such that reasonable men would probably draw different conclusions and inferences therefrom as to whether the servant knew of the dangers incident to his employment, or whether a reasonable person in the exercise of ordinary care should have known of such dangers, an instruction, which submits to the jury the defense of assumption of risk according to the rule of the common law, is not erroneous.
11. Same--Sufficiency of Instructions.
In the trial of a personal injury case, where the evidence offered by the plaintiff substantially conforms to the allegations of the petition, and no proof is offered by the defendant, and the court, in an instruction, in substance and effect, advises the jury in a manner easily understood by men of ordinary intelligence, of the allegations of negligence set out in the petition, and submits the matter to the jury to determine whether or not the things complained of and testified about amount to negligence under the circumstances presented, and whether or not the negligence, if such they find it to be, was the direct and proximate cause of the injury complained of in the testimony, if they must be convinced as to the negligence, the injury, and the proximate cause by the fair preponderance of the evidence before finding for the plaintiff, such instruction is not so erroneous as to require a reversal of the plaintiff's judgment because of being contrary to the law.
C. O. Blake, W. R. Bleakmore, A. T. Boys, and W. F. Collins, for plaintiff in error.
Diamond & Orr, for defendant in error.
¶1 The plaintiff in error was the defendant below, and the defendant in error was the plaintiff. The parties will be referred to herein as plaintiff and defendant as they appeared in the trial court. The plaintiff seeks to recover damages for personal injury. In substance and effect the plaintiff alleges that he was employed by the defendant and was working as a section hand upon the defendant's railroad; that on or about July 26, 1922, the defendant required the plaintiff to handle certain crossties for use upon the road, which had been made wet with a strong solution of creosote; that the solution of creosote was dangerous and poisonous, and was likely to inflict injuries where it should come in contact with the skin and flesh; that plaintiff had had no experience in handling creosoted railroad ties in hot weather, and did not know of the dangers incident to getting the creosote upon the skin and flesh, and that defendant negligently failed to warn him of the danger and directed the handling of the ties without the use of any tools or equipment to prevent getting the creosote upon his person; that he handled the ties with the effect that he got the creosote solution upon his person and particularly upon his private genital organ, with the result that he had to have medical treatment at expense to him and loss of time; and was made sore and suffered much pain and distress and has been left in a scarred condition which makes procreative intercourse painful, and that the injury is permanent. That he has sustained damages as follows: Loss of time, $ 100; doctor and medical bills, $ 46.90; pain and suffering, $ 2,850; a total of $ 2,996.90, for which he prays judgment. The defendant answered by general denial, and that the injury was caused by the plaintiff's own lack of care, and negligence; that the plaintiff knew of the danger in handling the ties, if any existed, and assumed the risk, and that plaintiff and defendant were engaged in interstate commence, and the duties and obligations of the parties are controlled by the federal Employer's Liability Act. The plaintiff replied by general denial. The cause was tried to a jury, resulting in a verdict and judgment for the plaintiff in the sum of $ 2,000. The defendant appeals, and presents its assignments of error as follows:
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