Chicago, R.I. & P. Ry. Co. v. Brooks
| Decision Date | 27 October 1931 |
| Docket Number | 19860. |
| Parties | CHICAGO, R.I. & P. RY. CO. v. BROOKS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 12, 1932.
Syllabus by the Court.
1. In a suit for wrongful death against a railway company under the Federal Employers' Act (45 USCA §§ 51-59), "The general rule undoubtedly is that a railroad company is bound to provide suitable and safe materials and structures in the construction of its road and appurtenances, and if, from a defective construction thereof, an injury happen to one of its servants, the company is liable for the injury sustained. The servant undertakes the risks of the employment as far as they spring from defects incident to the service, but he does not take the risks of the negligence of the master itself. * * *
It is the duty of the company, in employing persons to run over its road, to exercise reasonable care and diligence to make and maintain it fit and safe for use; and, where a defect is the result of faulty construction, which the employer knew, or must be charged with knowing, it is liable to the employee if the latter use due care on his part, for injuries resulting therefrom. * * *" Union P. R. Co. v O'Brien, 161 U.S. 451, 16 S.Ct. 618, 620, 40 L.Ed. 766.
2. Where the trial court in stating the issues to the jury quotes extensively from the pleadings and substantially states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved. St. Louis-S. F. Ry. Co. v. Routh, 133 Okl. 168, 271 P. 835; St. Louis S. F. Ry. Co. v Eakins, 141 Okl. 256, 284 P. 866.
3. Fulsom-Morris Coal & Mining Co. v. Mitchell, 37 Okl 575, 132 P. 1103.
4. Record examined. Held, upon filing a remittitur in the sum of $17,500 within twenty days the judgment of the trial court is affirmed, otherwise said cause is reversed and remanded for a new trial.
Appeal from District Court, Canadian County; Lucius Babcock, Judge.
Action by Emmie P. Brooks, administratrix of the estate of Oscar L. Brooks, deceased, against the Chicago, Rock Island and Pacific Railway Company. Judgment for the plaintiff, and the defendant appeals.
Affirmed on condition of remittitur.
Petition for rehearing denied; RILEY and KORNEGAY, JJ., dissent.
W. R. Bleakmore, John Barry, W. L. Farmer, and Robert E. Lee, all of Oklahoma City, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter, of Oklahoma City, and A. G. Morrison & Sons, of El Reno, for defendant in error.
This is an appeal from the judgment of the district court of Canadian county rendered in favor of the plaintiff below, Emmie P. Brooks, administratrix of the estate of Oscar L. Brooks, deceased, defendant in error, against the Chicago, Rock Island & Pacific Railway Company, plaintiff in error.
The parties will be referred to as they appear in the trial court. The cause was tried to a jury, and the jury awarded plaintiff damages in the sum of $35,000. The action was instituted by the administratrix of the estate of Oscar L. Brooks, deceased, against the railway company. The petition alleged that Oscar L. Brooks was employed by the Chicago, Rock Island & Pacific Railway Company as a section or track foreman on its line of railway between Mangum and Granite; that said company had constructed between said points a pile-driven trestle bridge about nine hundred feet in length across Elm creek or Elm river of Red river, which bridge was within the section of track under the jurisdiction of said Brooks; that said river flowed through a low bottom about a mile and a half or two miles in width; that there is usually very little water passing under said bridge, but periodical floods came down said river filling up the low bottom, from the high banks on the east to the high banks on the west; that during these periodical floods the waters would come down said low bottom under said bridge and strike the bents of said bridge; that the bed of said river for a distance of some two or three hundred feet beginning at the east end of said bridge and extending in a westerly direction is underlaid with some kind of hard substance covered with only a few feet of oil or sand.
That the bridge so constructed was at flood time dangerous to employees and others whose duties required them to go upon or across the same; that it consisted in part of bents, composed of five piling to a bent; that it was the duty of the railroad company to drive the piling for the bridge a sufficient depth to give the bridge lateral support, which plaintiff alleges should have been from 10 to 12 feet through the soil; that said railway company negligently and carelessly constructed its said bridge for a distance of two to three hundred feet across the current of said river by erecting the same upon piling driven only from two to eight feet without anchoring or fastening the end of said piling in any manner to the hard substance underlying the soil or sand across said current of said river; that the bridge was carelessly and negligently maintained with rotten brash, insecure piling, girders and ties, and other materials which rendered said bridge dangerous and insecure for the use of its employees, whose duty required them to cross or be upon said bridge during floodtime.
That on the 3d day of October, 1926, when a flood was coming down said river, and after some of the bents placed in said bridge had been washed out, and at a time when rotten piling, stringers, ties and other material were in said bridge, that Brooks was ordered by D. B. Burke, agent of the railway company to go from Mangum across the said bridge with a motorcar or speeder to the station of Granite, which was some ten miles east of the city of Mangum, and there meet one of the railway company's passenger trains, transfer the mail and express from said train over and across said bridge to the city of Mangum; that, while said Brooks was complying with said orders and performing his duties incident thereto, by reason of the negligence and carelessness of the defendant railway company in negligently and carelessly constructing and maintaining said bridge and permitting rotten and weak piling, stringers, ties and other material to be and remain in said bridge, and while the said Brooks was upon said bridge, said bridge gave way and precipitated Brooks into the waters of said river, injuring him about the head, legs, and body to such an extent that he was unable to rescue himself, and after struggling in said water for a period of thirty minutes, he was drowned.
The railway company demurred; the same was overruled and exceptions allowed. By answer it denied all the material allegations of plaintiff's petition, admitted its corporate existence, and that the rights, duties, and liabilities of the parties came within the Federal Employers' Liability Act of Congress. It specifically pleaded that the decedent Brooks assumed the risk, alleging that Brooks had been employed as section foreman upon this particular line for a period of twelve years; that while he was engaged as section foreman he fully understood, knew and appreciated the nature, extent, and character of the dangers and hazards of the work required of him; that as section foreman it was his duty to see and be responsible for the safety of the track and railroad bridges of the railway company at the point where the accident complained of occurred; that it was his duty to make a thorough inspection and ascertain the safe or unsafe condition of said bridge, track, rails, grade, and embankment and report or repair the same; that when the accident complained of occurred the decedent did know the actual condition of said bridge and trestle work, and did know that flood waters were then raging in said Elm creek, and knew that a part of the bridge had already washed out, and knew that more of said bridge or the entire bridge might at any time be washed away, and knew and appreciated all of the circumstances and conditions pertaining to said bridge and stream, and by reason of such facts he assumed the risk incident to the hazards and dangers presented by said bridge.
It specifically pleaded that it was not necessary for decedent, in the performance of his duties, to go out upon said bridge at the time he ventured out upon the same, but that his duties required him to inspect said bridge at a safe distance from the place where the bent of said bridge had been washed out and torn away; that if he went out upon said bridge, said act was unnecessary and was not authorized or directed by the defendants. Defendant railway company answering further pleaded contributory negligence.
Plaintiff filed a reply denying the new matter in said answer contained.
Plaintiff in error in its petition in error specify forty-nine grounds of error and present in its brief twenty-two assignments of error and discuss the same under fifteen separate propositions of law.
Counsel for plaintiff contends that the piling did not have sufficient penetration in the shale or rock in the current of the creek so as to properly anchor the same, and that the defects in the bridge consisted of rotten piling, which was the cause of the fall of the bridge, which resulted in the death of the decedent. The bridge was constructed by the B. & B.
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Carpenter v. Kurn
...the Oklahoma case cited us and find that the facts in this case are more comparable to the facts in the case of Chicago, R. I. & P. Ry. Co. v. Brooks, 11 P.2d 142, than in the other cases. In that case, deceased had a expectancy of thirty-one years, with an annual earning of approximately $......