Choctaw Elec. Co. v. Clark
| Decision Date | 21 March 1911 |
| Citation | 114 P. 730,28 Okla. 399,1911 OK 82 |
| Parties | CHOCTAW ELECTRIC CO. v. CLARK. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where an employé of an electric light company seeks to recover for injuries resulting from defective material furnished by an employé, who, otherwise than as to the furnishing of said material, was a fellow servant of plaintiff, it must be shown that such employé was authorized to furnish or supply the material which caused the injury.
Plaintiff was injured by falling from a defective pole that had been obtained from a telephone company after it had been abandoned by the telephone company by a foreman of a gang of which he was a member, and which was engaged in transferring one of the lines of the light company from one side of the street to the other. The company had no printed rules defining the authority of its foreman. The evidence established that the foreman had prior to that time obtained poles from the telephone company, and that the same had been used by employés of the light company with the knowledge and acquiescence of its superintendent under whose supervision the construction and building of the lines of the company was, and that in the instant case the superintendent appeared at the place of the accident immediately after it occurred made no reprimand of the foreman or objection to his conduct and that on the succeeding day the pole was rigged with the appurtenances of the company, and thereafter used by it for some time. Held, that the evidence was sufficient to require the case to go to the jury for its determination whether the foreman was acting within his authority in obtaining and furnishing the pole to the members of his gang.
Plaintiff's injuries were received from a fall from an electric light pole, about 30 feet in heighth. The fall was alleged to have been caused by the rotten, defective condition of the pole near its top, at which point plaintiff had struck his spur into the pole to support himself; and it slipped therefrom because of the pole's decayed and defective condition. The pole was used for a short time thereafter by the electric light company, when it was removed and shortly thereafter was placed in a building. The upper part of the pole, including the part from which plaintiff fell, was introduced in evidence after the same had been identified. There was testimony by witnesses who saw the pole at the time of the accident to the effect that the piece introduced in evidence appeared to be in practically the same condition as when the accident occurred, except that it was some drier. There was no controversy about the condition of that part of the pole not introduced in evidence. Held, that the part offered was properly received in evidence.
In the Indian Territory, prior to the admission of the state, a party to a civil action under the seventh amendment to the federal Constitution was entitled to a jury of twelve and a unanimous verdict. This right, as to pending actions, was upon the admission of the state continued by section 1 of the Schedule to the Constitution and section 19 of article 2 of the Constitution (Snyder's Constitution, p. 83) authorizing three-fourths of the number of jurors concurring to render a verdict in a civil cause, has no application to causes pending in the United States courts of the Indian Territory at the time of the admission of the state.
(Additional Syllabus by Editorial Staff.)
It is the duty of a master to furnish a servant with a reasonably safe place in which to work, reasonably safe appliances with which to work, reasonably safe material and reasonably competent fellow servants to work with, which duty cannot be delegated by him so as to relieve him of liability for injuries resulting from its violation.
Error from District Court, Pittsburg County; Preslie B. Cole, Judge.
Action by James Clark against the Choctaw Electric Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
F. H. Kellogg, for plaintiff in error.
Geo. A. Grace and H. L. Haynes, for defendant in error.
This action was originally brought in the United States Court for the Central District of the Indian Territory by defendant in error, hereafter referred to as plaintiff, against plaintiff in error, hereafter referred to as the "company," to recover damages for injuries alleged to have been received by plaintiff while in the employ of the company at South McAlester, Ind. T. The trial of the cause occurred in the district court of Pittsburg county, to which court it was transferred under the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Schedule to the Constitution upon the admission of the state. The trial was to a jury, and resulted in a verdict and judgment in favor of plaintiff for the sum of $1,000.
Nineteen assignments of error are set out in the company's brief for reversal of the cause, but in the argument these assignments are reduced to five propositions; and we shall consider the propositions on which reversal is asked in the condensed form as set out in the argument in the brief.
It is first insisted that the trial should have resulted in a judgment for defendant either by the court's sustaining the company's demurrer to plaintiff's evidence or by sustaining its motion for peremptory instructions to the jury to find for it. Able counsel for the company insists in his brief that plaintiff's evidence fails in four particular respects to establish a case in his behalf: First. That there was no proof of negligence on the part of the company. Second. Contributory negligence on the part of plaintiff. Third. That plaintiff had knowledge of all the conditions surrounding the work at the time of his injury and assumed all the risk incident thereto. Fourth. That the injury received by him was the direct result of the negligence of a fellow servant.
Whether there is anything tending to show negligence on the part of the company rendering it liable depends upon whether the construction foreman under whom plaintiff was working at the time he received his injury was acting within his authority. There is evidence reasonably tending to establish the following facts relative to the manner in which plaintiff received his injury: The company was engaged in the business of maintaining an electric light plant and in furnishing electric lights to the inhabitants of South McAlester. Plaintiff was an employé of the company as a lineman; and at the time of the accident was a member of a gang under the supervision and direction of one Allen as construction foreman. In the afternoon on the date of the accident, the force of men, of which plaintiff was a member, was engaged in taking down one of the electric wires of the company from the poles on the east side of First street, and placing it on poles on the west side of said street. At the corner of First street and Grand avenue stood a pole about 30 feet in height that belonged to a telephone company in the city, the use of which had been abandoned by the company. To the north of it about 60 feet away stood another similar pole belonging to the same company. Plaintiff was directed by the foreman to ascend the pole at the corner and take therefrom the cross-arms then upon it and place thereon cross-arms furnished by the electric light company. In obedience to this direction, given by the foreman, he ascended the pole on the north side, after having observed its condition the best he could from the ground. He unloosened the nuts from the bolts that fastened the cross-arms on the pole, but was unable without help to remove the bolts from their positions or to detach the cross-arms. He thereupon called to a fellow workman, who had been sent to do some work on the pole just north and had finished his work, to ascend the pole to help him release the cross-arms. This fellow workman, whose name was Miller, like plainti...
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