City of Wynnewood v. Cox
| Citation | 122 P. 528,31 Okla. 5639,1912 OK 170 |
| Parties | CITY OF WYNNEWOOD v. COX. |
| Decision Date | 12 March 1912 |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
The evidence in support of the verdict of a jury on appeal in this court is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected; and where all of the evidence supporting a verdict, taken together and given all of the presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not go behind the verdict and set it aside, on the ground that the countervailing evidence offered, had it been accepted, would have justified a different one.
Plaintiff brought action for damages, alleged to have been caused by being struck by a bolt of lightning gathered on the wires of an electric light plant, and by them conveyed into the plant where plaintiff was working, thereby causing his injury. The specific negligence averred was that the defendant was negligent, in that it had failed to install an adequate number of lightning arresters. Over the objection of the defendant, plaintiff was permitted to prove that immediately after the accident defendant installed a number of additional lightning arresters. The admission of this evidence was error, for the reason that testimony of subsequent repairs or precautions, taken after the happening of an accident causing injury, is not admissible to prove antecedent negligence.
Plaintiff was injured about midnight; on the next morning, the general superintendent of the electric light plant, in discussing the injuries, said, "I guess it is my fault." This statement was testified to, over the objections of counsel for the defendant, which is a municipal corporation. The admission thereof was error; the declarations or admissions of a public officer cannot be given in evidence to bind a municipality of which he is the agent, unless they are a part of the res gestæ. Held, further, the statement was not a part of the res gestæ, not being so immediately connected with the transaction in point of time and circumstance as to constitute a part thereof.
The latitude allowed in the cross-examination of expert witnesses is largely in the discretion of the trial court; and, where the same is not shown to have been abused, error cannot be predicated thereon.
Error from District Court, Garvin County; R. McMillan, Judge.
Action by A. G. Cox against the City of Wynnewood. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Frank L. Robinson, J. T. Wheeler, and Patchell & Henderson, for plaintiff in error.
J. B Thompson and J. G. Jones, for defendant in error.
This case presents error from the district court of Garvin county. December 18, 1908, the defendant in error, as plaintiff brought action against the plaintiff in error, as defendant to recover damages for injuries alleged to have been occasioned by and through defendant's negligence in the equipment of its electric light plant, in which defendant was an employé.
The petition sets up, in substance, that on or about October 22, 1908, the defendant owned and operated such a plant in the city of Wynnewood; that it caused to be erected near the city a power house, at which was generated the electricity with which the said city furnished light and power to its inhabitants; that to carry the electric current from the power house to the city it caused to be strung on poles about four miles of wire to convey the current from the power house to the different points in and about the city, where the same was distributed; that at the said time the plaintiff was employed at the power house at nights; that during electric and thunder storms the wires became heavily charged with electricity, sufficient to inflict death, or do great injury to those coming in contact with them, and that, by reason of this fact, there arises the peculiar danger of suspending the wires and operating the same without sufficient lightning arresters to carry off the loads of electricity with which they become charged during such storms, all of which was known to the defendant; that, due to the fact that the said system had not been properly protected by the lightning arresters, properly installed, the plaintiff, while in the discharge of his duties in the operation of the plant aforesaid, was struck by a bolt of lightning gathered thereon, which was conducted into the power house, by which he was knocked down, completely paralyzed, and, for the time being, deprived of the power of speech and locomotion; that he lay on the floor of the power house, where so injured, from shortly after 12 o'clock of the morning of October 22, 1908, until about 6 o'clock a. m., when he was found speechless, unconscious, and badly bruised. He avers that, prior to the injury so inflicted, he was of vigorous mind and robust constitution, but that, as a consequence of his said injury, his health and mental capacity has been seriously impaired, and his ability to pursue his usual avocation destroyed. He further alleges that the injuries were caused wholly by the negligence on the part of the defendant, by reason of its failure to equip its said wires with a sufficient number of lightning arresters, properly installed, to arrest the currents of electricity during ordinary electrical storms. For his injuries, he prayed judgment in the sum of $12,000. For answer, the defendant admitted the employment of plaintiff and his injury, but denied generally and specifically all of the averments of plaintiff's petition, wherein it was alleged that the injuries complained of were due to defendant's fault, and averred that they were the result of an unavoidable and inevitable accident. On the issues thus made, the cause came on for trial before a jury on the 17th of March, 1909, which, on the evidence adduced before it, returned a verdict, finding for the plaintiff, and assessed his damages in the sum of $6,000. After motion for new trial was filed and denied, the cause was lodged in this court for review.
Counsel for defendant, in their abstract and brief, quote copiously from the testimony adduced, both by plaintiff and defendant, to support a specification of error that there is such a want of evidence to sustain the verdict that the judgment rendered thereon cannot be affirmed. The case is argued here as if before a jury; the purpose being to show that by the overwhelming weight of evidence plaintiff should not have recovered. In this, counsel ignore the rule that, if there was any competent evidence introduced on the part of plaintiff reasonably tending to support the jury's verdict, this court would not weigh as against it the other evidence offered. The conclusion reached by a jury is weighed on appeal in this court by that evidence only which supports it. If all of the evidence supporting a verdict, taken together and given all of the presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not go behind it and determine what verdict the jury might have returned on the countervailing evidence offered, had it been accepted. The evidence in support of the verdict is here regarded as true, and the evidence against it is considered, for reasons sufficient to the jury, to have been rejected. The argument of counsel is that the evidence offered by plaintiff was unreliable and unsatisfactory on the issue of the proper equipment of the lines with sufficient lightning arresters, and that the evidence offered on its part established the equipment was sufficient. The story of the situation and surroundings at the time of the injury is as follows:
On the morning of the 22d of October, 1908, the plaintiff, employed by the defendant to operate its machinery in the power house of the light plant, was found on the floor of the power house, conscious, but in an almost completely paralyzed condition. The power plant, which is located some distance outside of the city, is a building with brick walls and an iron roof, about 40 by 50 feet in dimensions, extending east and west. The boiler is in the northwest corner, the engine in the southwest corner, while the dynamo is due east of the engine, near the southeast corner, about 7 or 8 feet west of the east wall, and the pully wheel on the dynamo, on which the belt from the engine runs, is only about 1 foot north of the south wall. The switchboard is about 10 feet northeast from the dynamo, near the east wall of the building. The outside wire circuits enter through the east wall just back of the switchboard. There are two circuits for conveying electricity to the city, one called the "arc," and the other the "primary circuit." One of these is connected with the dynamo wires by a knife blade switch and the other by plugs. On the morning after the injuries occurred, the plaintiff was found lying breast downward, head about one foot from the dynamo, feet toward the east wall of the building, with an ugly cut an inch and a half long on his chin, severe bruises about the nose and forehead; and the hair about his face, neck, and breast and other parts of his body had the appearance of having been singed or burned. He says that just prior to the accident a thunder storm had arisen, and that the lightning struck the line and burned out the dynamo, or was burning it out, and that to prevent further injury he shut the plant down; that he then started his pump, opened the furnace door to prevent the further making of steam, after which the telephone rang. In answering it, he found that Mr. Whitaker, the superintendent of the system, had called him up to ascertain the trouble, and he told him that the dynamo had burned out; whereupon he gave him certain instructions with reference to what to do. He...
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