Chicago, R.I. & P. Ry. Co. v. Brazzell
| Decision Date | 13 January 1914 |
| Citation | 138 P. 794,40 Okla. 460,1914 OK 1 |
| Parties | CHICAGO, R.I. & P. RY. CO. v. BRAZZELL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 20, 1914.
Syllabus by the Court.
Where there is a conflict in the evidence on the issues joined, the determination of the question of fact thereon is solely for the jury.
(a) This court on review, where there is a conflict in the evidence on an issue in the trial court, will not weigh the evidence or determine as to the credibility of the witnesses that, under the law in this jurisdiction, being solely within the province of the jury.
To constitute actionable negligence, where the wrong or injury is not willful or intentional, three elements are essential (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.
The fact of an accident or injury to the employé as a rule carries with it no presumption of negligence on the part of the employer.
(a) It is incumbent upon the employé to prove that the accident or injury was a result of the negligence of the employer before he is entitled to recover damages therefor against the employer.
The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employé or servant is to work, and also reasonably safe machinery tools, and implements with which to work and to supply him with reasonably safe material on which to work.
A party guilty of negligence or omission of duty is responsible for all the consequences, which a prudent and experienced party fully acquainted with all the circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.
Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.
Action by C. M. Brazzell 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, and J. H. Woods, of Shawnee, for plaintiff in error.
H. H. Smith, of Shawnee, for defendant in error.
This proceeding in error is to review the action of the trial court wherein the defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover damages for personal injuries alleged to have been received by said plaintiff on August 17, 1910, while in the employ of the defendant as a car repairer in said defendant's shops at Shawnee, Okl. The parties will hereinafter be referred to under the style and manner in which they appeared in the trial court. The plaintiff was injured whilst engaged in repairing a freight car by putting up a coupler or drawbar. The trial was had and judgment rendered in favor of the plaintiff for the sum of $7,500. On May 14, 1912, on appeal to this court, the judgment was reversed and the cause remanded. On July 25, 1913, on a retrial judgment was rendered in favor of the plaintiff for $12,000.
According to plaintiff's theory and the finding of the jury defendant furnished plaintiff a defective appliance, to wit, a spring to be driven into the sleeve of the drawbar of a freight car, and was directed by his superior or foreman to so drive said spring, and the attachments to the spring were too long to...
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