Chicago, R.I. & P. Ry. Co. v. De Vore
| Decision Date | 15 September 1914 |
| Docket Number | 3340. |
| Citation | 143 P. 864,43 Okla. 534,1914 OK 417 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. DE VORE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 13, 1914.
Syllabus by the Court.
It is the duty of the master to furnish his servants a reasonably safe place to work; reasonably safe appliances with which to work; reasonably safe material to work with; and reasonably competent fellow servants.
The master is liable for the negligent acts of his servant resulting in injury to a fellow servant, while performing services for his master within the general scope of his employment, although at the time of the injury he may be acting in violation of express orders of his master.
The evidence shows that the duty of the fireman, plaintiff's coservant, at the time of the injury, in addition to firing the engine, was to assist plaintiff as engineer in keeping up and repairing the engine when called upon to do so by the engineer; but the fireman had no authority to repair the engine, except when requested so to do. Held, that the fireman in repairing the engine, although without any request to do so, and in violation of orders of his master was working within the general scope of his employment.
The engine on which plaintiff and his coemployé were working at the time of plaintiff's injury had a fireman's cab separate from the engineer's cab. Each of said cabs was constructed to contain a water glass, the purpose of which was to be used by the engineer to keep informed as to the condition of the water in the boiler. On the day plaintiff was injured, the engine was sent out with only one water glass; there being none in the fireman's cab. The engineer was not informed of the absence of said water glass until out on the road. The fireman, without the knowledge and without any orders from the engineer, secured a glass which was too short and attempted to put it in. Plaintiff was called to the fireman's cab by the fireman, and as he reached the point near the water glass, it exploded, destroying his eye. Held, that the fireman, in replacing the water glass, was performing services for his master and acting within the general scope of his employment. Held, further, that the question of negligence of the master, as well as that of the plaintiff's coservant, was, under all the facts and circumstances, a question of fact for the jury.
Plaintiff was a man 34 years old and physically strong at the time of the accident; had worked his way up to the position of engineer in the railroad service; had prepared himself and selected this for his life's work; was receiving from an average of $125 to $130 per month. His earning capacity by reason of the injury was reduced $65 per month. His injury disqualifies him from ever holding the position of engineer with any railroad company. His expectancy, according to the American Mortality Table, is 34 years. He suffered a great deal of pain for 15 days; was under the care of a physician for about 4 months. The sight of his eye was entirely destroyed. There is nothing in the record to indicate that the jury was influenced by passion or prejudice, except it be the amount of the verdict. The verdict was approved by the trial court. Held, that it is not shown that the trial court abused its discretion in approving the verdict. Held, further, that a verdict of $15,000 is not excessive.
Error from District Court, Seminole County; Tom D. McKeown, Judge.
Action by Isaac De Vore against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
C. O. Blake, H. B. Low, R. J. Roberts, and W. H. Moore, all of El Reno, for plaintiff in error.
W. N. Maben, of Shawnee, and Stuart, Cruce & Gilbert, of Oklahoma City, for defendant in error.
The allegations of negligence, so far as important here, are:
"That on the morning herein complained of the agents, servants, and employés, as well as the defendant, negligently and carelessly failed to make an inspection of said engine, and negligently and carelessly permitted said engine to go out of the roundhouse without any water glass on the side next to the fireman or any shield surrounding the place where said water glass should have been; that, without consulting him, the said fireman went over to the steam shovel engineer and obtained a water glass, which he negligently attempted, without the knowledge or consent of the plaintiff, to put in, and that the same was too short and was an inadequate piece of machinery or implement, and that, on account of the same being too short, the said fireman was unable to properly adjust the same so as to prevent the escape of water and steam; and plaintiff says on account of the fireman's negligent attempt to adjust the same, and on account of the fact that the same was too short to be properly adjusted, the said water glass exploded, inflicting the injuries complained of. * * *"
In the third paragraph, it is alleged:
"That by reason of the negligence of the defendant, its agents and servants, in failing to provide said engine with a water glass and with a proper shield, and by reason of said fireman's negligence, that said engine was an unsafe and improper place in which to do and discharge his duties; * * * and that said negligent acts on the part of the defendant company, its agents and servants, was the proximate cause of the injury."
The undisputed evidence shows the following facts: Plaintiff resided and was employed by defendant company in the city of El Reno as engineer, working upon what is known as the Belt Line. He had been an engineer since the year 1906. On the 21st day of January, 1910, plaintiff was given an engine constructed with the engineer's cab about midway of the boiler and with the fireman's cab near the rear of the boiler, about 12 or 15 feet from the engineer's cab. The engine was turned over to plaintiff about 6:15 in the morning by the hostler, and he was assured that the engine was in working condition and ready for him to take. The engine was known as the 1891 class; was equipped the same as other engines, except it had two water glasses, which required two shields. That when they were in proper condition, they were so equipped. That the purpose of the two water glasses was that the engineer and fireman might be advised as to the height of the water in the boiler. That when the water becomes too low, there is danger of a boiler explosion. That, after they had left the roundhouse with the engine some distance, the engineer was notified by the fireman that there was no water glass in the fireman's cab, but had no notice there was no shield. That said engine and all engines of like class in common use by defendant railway company, as well as all other railway companies, was equipped with two water glasses and shields. After they had been out some time, the fireman went to the engineer to get his tools, stating that he would get everything ready for him to put in a water glass. That later the fireman went to the engineer's cab and requested him to come into the fireman's cab. Plaintiff's own language on this point was as follows:
"He came to the runway and called me to come back into his cab, and I had a minute that I could get away about that time, and I went back, and when I got back, there is about two steps from the runway, down into his cab, and I stepped down, or rather jumped down and into the back of the engine, and straightened up to ask him, 'What do you want?' fixing a water glass at that time, and the water glass exploded and a piece of it struck me in the eye."
The evidence shows that the injury resulted in the loss of plaintiff's eye; that he was under treatment of an oculist for several months and suffered a great deal of pain for a period of 15 days; that the first work he did after the injury was on the 10th day of June; that his average monthly salary as engineer up to the time he received the injury was from $125 to $130 per month; that he had been engaged in the railway service since 1899, and was, at the time of the trial, 35 years old; that on or about the 10th day of June, after the injury, he was employed as a stationary engineer at El Reno at a salary of $2 per day; that his injury unfits and disqualifies him from serving as engineer upon any railroad; that when the engine was properly equipped with water glasses and shields there was practically no danger of injury from explosion of the glass. The duties of the fireman who was working with plaintiff on the engine were to fire the engine and to assist the engineer in taking care of and repairing the engine when called upon and directed by the engineer so to do. The fireman had no authority to make repairs on the engine, except when ordered or requested to do so by the engineer. The water glass which the fireman attempted to put in was too short. When the engineer was called to the fireman's cab, he had no notice that the fireman had attempted to put the water glass in, or that it was too short, and had no notice that there was no shield around the same, until after the explosion and the injury. The water glass in or near the fireman's cab was not an absolute necessity, but was on all engines of this class, and it was more convenient for the fireman to have it.
The principal contentions, presented and argued together under the first and second assignments of error, are as follows: First, the court erred in overruling the motion for a new trial, for the reason that the verdict was not sustained by sufficient evidence; second, the court erred in overruling the motion for new trial, for the reason that the verdict was contrary to law.
It is earnestly contended that the evidence is insufficient to sustain the verdict and judgment of the court. Under this...
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