Chicago, R.I. & P. Ry. Co. v. Foltz

• Decision Date: 11 January 1916
• Docket Number: 4722.
• Citation: 154 P. 519,54 Okla. 556,1916 OK 14
• Parties: CHICAGO, R.I. & P. RY. CO. v. FOLTZ.
• Court: Oklahoma Supreme Court

154 P. 519

54 Okla. 556, 1916 OK 14

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

No. 4722.

Supreme Court of Oklahoma

January 11, 1916

Syllabus by the Court.

An accident to an employé in the course of his employment carries with it no presumption of negligence on the part of the employer. The negligence of the employer is an affirmative fact to be established by the plaintiff.

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.

Evidence of a statement of an employé of the company examined, and held to be a narrative of a past act subsequent to the accident, and not a part of the res gestæ; the admission of such hearsay evidence being prejudicial error.

Commissioners' Opinion, Division No. 3. Error from District Court, Major County; James W. Steen, Judge.

Action by Charles Foltz, administrator of the estate of Sidney Foltz, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff and defendant brings error. Revived in the name of Maggie Foltz, as administratrix of the estate of Sidney Foltz, deceased. Reversed and remanded.

C. O Blake, R. J. Roberts, and W. H. Moore, all of El Reno, J. G Gamble, of Des Moines, Iowa, K. W. Shartel, of Oklahoma City and Brady & Willis, of Fairview, for plaintiff in error.

A Fairchild, of Enterprise, Or., Harry Randall, of Fairview, A. C. Beeman, of Cherokee, and E. C. Wilcox, of Anthony, Kan., for defendant in error.

RITTENHOUSE C.

This is an action by Maggie Foltz, as administratrix of the estate of Sidney Foltz, deceased, to recover damages from the Chicago, Rock Island & Pacific Railway Company for the wrongful death of her son, Sidney Foltz, deceased, on or about November 19, 1909, while said deceased was an employé of the company as a section laborer, engaged on the day of his death in removing drift lodged against defendant's bridge over Eagle Chief creek, in Alfalfa county, Okl. It is alleged in the petition:

"That on and prior to the 14th day of November, 1908, the said defendant, as a part of its roadbed in the county of Major and state of Oklahoma aforesaid, had constructed a bridge over Eagle Chief creek, which bridge and portion of the roadbed of said defendant was necessary and used in the commerce aforesaid between the states; that said Sidney Foltz was an inexperienced section man; he did not know of the various dangers that he would encounter in the work herein mentioned; that on said 14th day of November, 1909, the said Eagle Chief creek was in a turbulent, swollen, and surging condition, and said stream bore in its current a great quantity and number of logs, drift, and trash, which was about to and did accumulate at said bridge, and was extremely apt to seriously damage said structure or demolish it and cause it to be swept away in the current, and said Amos Craig, foreman of said defendant, who had charge of the roadbed and repairing of said bridges and the general care and protection of the same from such drift, thereunto duly authorized, did on said 14th day of November, 1909, order the said Sidney Foltz to take a certain hook and pole and to assist other workmen in clearing said bridge of said drift and trash as might be lodged or about to be lodged against it, and to cause all of said drift and trash borne by said stream to pass under and beyond said bridge and to avert danger and damage thereby by reason of said swollen stream and the rapidity of the current as aforesaid; that, notwithstanding the fact that said Sidney Foltz was inexperienced and did not apprehend or appreciate the danger of said work, and that said defendant owed to said Sidney Foltz the duty to furnish him with reasonably safe tools and appliances with which to work, to not order him to work in a dangerous place, to furnish him with reasonably competent coservants to work with, and the use of ordinary care in each of said particulars, the defendant wholly failed to recognize its duties as aforesaid, and furnished said Sidney Foltz with a pole that was fitted with a point or hook at the end thereof with which to loosen said drift, logs, and trash and to prod the same under said bridge, which pole was warped and crooked and insufficient in size, and had a dull point or hook on the end thereof, and was not a reasonably safe tool or appliance with which to work, and furnished said Sidney Foltz an unsafe place to work, to wit, said bridge, and furnished said Sidney Foltz grossly incompetent and inexperienced coemployés and servants who did not know the English language, and could not understand or speak the same, and could not hear and understand the command of the said Amos Craig as to what to do in assisting said Sidney Foltz, although given in plain English, all of which the said defendant well knew, or by the exercise of

reasonable care could have ascertained and which was unknown to said Sidney Foltz; that by reason of the carelessness of said defendant as aforesaid, all of which was occasioned in and about the care, repair, and preservation of said bridge and roadbed of said defendant in the aid and furtherance of it performing its duty as a common carrier between the said states, the said Sidney Foltz, in the scope of his duty and at the command of said foreman, undertook to push and pull said drift, logs, and trash, and prevent the same from accumulating and cause the same to float under said bridge and down said stream, and on account of the negligence aforesaid of the said defendant, its servants and employés, said point and said hook slipped and failed to stick into and hold said drift, logs, and trash, and said Sidney Foltz slipped off said dangerous place he was standing, to wit, said bridge, and fell into said stream and drowned."

In support of this petition the plaintiff proved that the deceased was 33 years of age; had had no sickness; had only worked 5 days on the section, and the foreman directed him with two Mexicans, one named George, to go and remove the drift from the bridge, which was constructed of building timbers and crosspieces extending on either side of the track. He was dressed in heavy clothing, and wore new shoes and gloves. He was seen going in the direction of the bridge on a hand car about 10 o'clock with the two Mexicans. About 12 o'clock the two Mexicans were seen returning. At one o'clock the foreman bore the news of his death to his mother. His coat was found on the bridge. A prod pole that was slivered and liable to catch on the clothing and with a blunt point about one-fourth of an inch square was found across some logs beneath the bridge, one of which logs had a wire around it, running in the direction of some tracks on the bank north of it, at the end of the log, which tracks fit the shoes of the Mexican George. The tracks were deeper at the heel than at the toe, and the wire around the log extended in the direction of the tracks. Another employé had used this prod pole prior to the accident, and was cautioned by the foreman about using it. It was twelve or fifteen feet long and unwieldy to handle. The log around which the wire was found had a number of indentations...