Cline v. Butts
| Decision Date | 20 February 1934 |
| Docket Number | 21827. |
| Citation | 29 P.2d 777,167 Okla. 378,1934 OK 91 |
| Parties | CLINE v. BUTTS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under doctrine of res ipsa loquitur, where C was standing on sidewalk directly below office on third floor of bank building occupied by H as lessee and from window of H's office a water pitcher belonging to H was blown, thrown dropped, or pushed out, falling and striking C on right shoulder, injuring him, it may be inferred that H or his employees was negligent either in setting pitcher near the open window so that it could be blown or pushed out, or in dropping it out of the window.
2. Demurrer to the testimony admits all the facts which the testimony in the slightest degree tends to prove and all the inferences which may be reasonably drawn from such testimony.
3. Where there is any evidence tending to show negligence by the defendant, it is error to sustain a demurrer to the testimony.
Appeal from District Court, Garfield County; O. C. Wybrant, Judge.
Action by B. F. Cline against A. F. Butts, administrator of the estate of J. H. Hays, deceased. From an adverse judgment plaintiff appeals.
Judgment reversed and cause remanded with directions.
W. W Sutton, of Oklahoma City, for plaintiff in error.
Simons, McKnight, Simons & Mitchell, of Enid, for defendant in error.
B. F Cline brought an action against Dr. J. H. Hays for injuries alleged to have occurred to B. F. Cline from a water pitcher falling from the third story of an office building, and hitting B. F. Cline on the right shoulder, and causing adhesions of the muscles of the shoulder, great bodily pain and suffering, and permanent injury.
Dr. J. H. Hays occupied two rooms, as lessee, on the east side and near the southeast corner of the third story of a building in Enid. On the south, the windows were open and a hallway led into the office of Dr. Hays, and made an air passage into and through Dr. Hays' office. B. F. Cline was standing directly under a window of one of the rooms occupied by Dr. Hays when a granite pitcher was thrown, blown, pushed, or dropped from the window, hitting B. F. Cline on the right shoulder.
B. F. Cline testified that he was standing on the sidewalk directly under the window of Dr. Hays' office, talking to E. L. Glascow and M. S. Johnson; that a pitcher fell from above and struck him on the right shoulder; that immediately after the pitcher struck him, Dr. Hays leaned out of the window and said if anybody was hurt to come up and he would look them over; that the pitcher came out of Dr. Hays' office on the third floor of the Enid National Bank building; that when the pitcher struck him, he became sick and nauseated; that he stood up against the side of the building for a short time, then went home; that he was 68 years of age at the time, was a carpenter and cabinetmaker, and was capable of earning, and did earn, about $175 a month prior to the time he received the injury from the pitcher falling upon his shoulder; that he has continuously suffered pain from that time until the time of the trial; that he cannot raise his arm above a level; that he has been unable to use his arm since the injury occurred, in his occupation as a carpenter and cabinetmaker; that he has incurred a doctor bill of $150 to Dr. Smith for treating him.
E. L. Glascow testified that he, Mr. Johnson, and B. F. Cline were standing on the sidewalk close together talking; that a pitcher fell from above and hit Mr. Cline on the shoulder; that after the pitcher hit Cline, it bounced off and hit Mr. Johnson; that Dr. Hays called down and said: "If anybody is hurt, come up and we will look you over."
M. S. Johnson testified that he was standing on the sidewalk by the Enid National Bank building and a pitcher fell down and struck Mr. Cline on the right shoulder, then bounced and struck him; that some person he thought was Dr. Hays reached his head out of the window and called from above; that the window or place where the man reached his head out was directly above where Cline was standing at the time the pitcher struck him.
Mrs. Fay Crouse testified that she was working for Dr. Hays at the time the pitcher fell out of the window; that Dr. Hays directed her to go down and get the pitcher after it had fallen; that when she went down she saw the man it had hit, standing there. She identified a pitcher as looking like the pitcher that she went down and got after it had fallen from the window; that Dr. Hays had a pitcher in his office like the one that fell out of the window that he used to carry water from the lavatory to the sterilizing instrument; that there was a shelf under the window that was sometimes used for witness and others to sit on; that Dr. Hays had told her never to set anything on the shelf.
Dr. C. E. Smith testified that he had treated Cline from the time of his injury and that he received a very severe shock from the injury, which caused functional disorders of several of the vital organs; that his arm was stiff and gave him a great deal of pain; that his charges for the services was $150.
Dr. J. A. Boyle, a chiropractic, testified that he had examined Cline; that his shoulder was stiff, and that the injury was such that he could not effect a cure.
These are the material facts in the case, as testified to by the witnesses for the plaintiff. At the close of plaintiff's testimony, the court sustained a demurrer to the evidence, and this is the error complained of by the plaintiff in error.
From the evidence, it is shown that Dr. Hays was the occupant and had control of the room from which the pitcher fell; that the plaintiff was on the sidewalk below, where he had a right to be; that the pitcher fell upon him, and injured him by the...
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