* Coalgate Co. v. Hurst

• Decision Date: 12 January 1910
• Docket Number: Case Number: 245
• Citation: 1910 OK 41,25 Okla. 588,107 P. 657
• Parties: * COALGATE CO. v. HURST.
• Court: Oklahoma Supreme Court

1910 OK 41

107 P. 657

25 Okla. 588

* COALGATE CO. v. HURST.

Case Number: 245

Supreme Court of Oklahoma

Decided: January 12, 1910

Syllabus

¶0 1. MASTER AND SERVANT--Master's Notice of Defect of Appliance--Admissibility of Evidence. It is competent to show that the general superintendent of a mine at or immediately after the installing or adjustment of a fan (and prior to the accident,) to be operated for the purpose of creating a current to carry out of the mine smoke, fumes, foul air, and gases dangerous to the lives of the employees, had notice of a defect in its adjustment.

2. MASTER AND SERVANT--Assumption of Risks--Negligence of Master. While a person entering voluntarily into a contract of service assumes all the risks and hazards ordinarily incident to the employment and such as are liable to arise from defects which are patent and obvious to a person of his experience and understanding, he does not ordinarily assume risks arising out of negligence of the master.

(a) He assumes all the ordinary risks of the employment which are known to him and which would have been known with the exercise of ordinary care to a person of reasonable prudence and diligence in the situation. It is his duty to exercise ordinary care and diligence, and observe and become cognizant of obvious defects in the machinery and working place, and he is chargeables with a knowledge of such risks and defects which would have been known to a person of reasonable prudence and care in his situation.

3. MASTER AND SERVANT--Death of Servant--Negligence of Master. When it may be inferred by the jury that the defendant in the construction, installing, or operation of the fan had omitted that care in its adjustment and operation to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff.

4. EVIDENCE--Res Gestae. Statements of plaintiff's intestate's co-employee made between 20 and 30 minutes after the accident, the fan having been readjusted and put in operation so that the current would carry the smoke, fumes, foul air, and poisonous gases out of the mine, in response to the inquiry, "Where is your buddy," with the reply to the defendant's employee, "He is on ahead, dead, all right. My lower limbs are paralyzed. I told him not to fire the shot, but he said he would go ahead and fire it anyhow," are not admissible in evidence as part of the res gestae.

5. MASTER AND SERVANT--Death of Servant--Proximate Cause--Evidence. In an action against a mining company for the death of one of its employees acting in the capacity of a shot firer resulting from injuries caused by smoke, fumes, foul air. and poisonous gases, by a reversal of a fan on account of its not having been suitably adjusted with reasonably necessary appliances for the purpose for which it was installed, there being evidence tending to show that the omitted appliance or appliances were reasonably necessary in its operation for such purposes--held, that a verdict based on the assumption that the omission to suitably adjust such fan with such additional appliance was the proximate cause of the accident was justified by the facts and circumstances.

* Appealed to the Supreme Court of the United States.

Error from District Court, Coal County; A. T. West, Judge.

Action by J. W. Hurst, Administrator of Ed. Cleveland, against the Coalgate Company. Judgment for plaintiff, and defendant brings error. Affirmed.

E. E. McInnis, A. G. Mosely, and C. Porter Johnson, for plaintiff in error.--Citing: Jones on Evidence, sec. 360; Regnier v. Territory, 82 P. 509; Lewis v. State, 15 S.W. 642; Freeman v. State, 46 S.W. 641; Shaefer v. Mo. P. Ry. Co., 72 S.W. 154; Johnson v. State, 58 P. 761; Union Casualty & Surety Co. v. Mondy et al., 71 P. 677; Linderberg v. Crescent Min. Co., 33 P. 692; International & G. N. R. Co. v. Anderson, 17 S.W. 1039; Lewis v. Burns et al., 79 P. 778; State v. Lockett, 68 S.W. 563; Pierce v. Van Dusen, 24 C. C. A. 280; North American Acc. Ass'n v. Woodson, 12 C. C. A. 392; Delaware L. & W. R. Co., v. Ashley, 14 C. C. A. 368.

J. R. Wood and C. M. Threadgill, for defendant in error.--Citing: Railway Co. v. McDade, 112 F. 888, 191 U.S. 96; Railway Co. v. Holloway, 114 F. 460; Hayes v. Railway Co., 111 U.S. 242; Railway Co. v. Price, 97 F. 428; Cecil v. Am. Sheet Steel Co., 129 F. 545; Wabash Screen Door Co. v. Black, 126 F. 725; Railway Co. v. Lafferty, 57 F. 536; Wood v. Railway Co., 88 F. 46; Railway Co. v. Stout, 84 U.S. 657; Railway Co. v. Ives, 144 U.S. 417; Jones v. Railway Co., 128 U.S. 445; Eddy v. Wallace, 49 F. 806 Berry v. Railway Co., 70 F. 194; Railway Co. v. Burris, 111 F. 887; Railway Co. v. Parks, 114 F. 161; Owen v. Bush, 76 F. 353; Fredenthal v. Brown & McCabe, 95 P. 1115; George v. Clark, 87 F. 609; Bunker Hill, etc., Co. v. Jones, 130 F. 818.

WILLIAMS, J.

¶1 The plaintiff (defendant in error) alleges in his complaint or petition that the defendant (plaintiff in error) during the time intestate served the company as shot firer "failed and neglected to exercise ordinary care and diligence to keep the fan in suitable operation and properly adjusted." It is insisted by the defendant in error that if this fan had been adjusted with reasonable arrangement, this accident would have been averted. The contention is not that the fan was insufficient and was not suitable to do the work for which it was intended, but that the plaintiff in error did not exercise that care and precaution that it should have done to see that the fan was kept suitably adjusted for operation. As to whether that was done is the crucial point in this case.

¶2 1. In the case of Southern P. Co. v. Lafferty, 57 F. 536, 6 C. C. A. 474, the trial court instructed the jury as follows:

"If you should find that those engineers were instructed to group their engines together in the yard after completing their day's run, then you are to consider the case as if all three of the engines on the night in question were grouped together, and then you are to say whether or not, in that aspect of the case, the appointment of the railroad company of a competent watchman (because there is no claim that Riley was not competent, nor is there any claim that he did not perform his duty in all respects) to look after those engines, and see that they were not tampered with, nor moved from their place, was a reasonable precaution to be taken by the company. They were obliged to exercise ordinary care to see that no damage came--no injury resulted--to its employees. Now, was that reasonable, in view of all of those facts and circumstances? They were not bound to insure against any accident, but to exercise a reasonable caution, and under those circumstances it is for you to say whether or not the appointment was such a reasonable precaution."

¶3 The Circuit Court of Appeals for the Ninth circuit in approving said instruction, said:

"We are of the opinion that the court did not err in declaring that the law imposed upon the railroad company the duty of taking reasonable precautions to see that the engines left upon its tracks at night in the yard at Fresno with water in the boilers and fires burning, were not tampered with or moved; and that the court properly submitted to the jury the question whether or not the employment of only one watchman to perform that duty, it being also required of him to wipe the engines and put them in proper order for service the next day, was a reasonable precaution. The general rule is that a person who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of his employment, but this rule is subject to many well-known and clearly established qualifications, and, among others, it is well settled that the master should not expose his employees, when conducting and carrying on his business, to perils or hazards against which they might be guarded by ordinary diligence and reasonable precautions on his part. The master is bound to exercise the care which the exigencies of the business in which he is engaged reasonably require for the protection of his employees. Hough v. Railway Co., 100 U.S. 213 Applying these principles to the particular facts in this case, we are of the opinion that the railroad company would have been negligent to have allowed its engines to remain upon its tracks in the yard at Fresno without taking some precautions to provide against their being put in motion of themselves, or by the act of careless, thoughtless, or evil-disposed persons. Live engines thus placed, without any person to guard or take charge of them, are liable to be interfered with; and if, from any of the causes before mentioned, they should be started to motion, and run out upon the main track, and continue in motion, they could in the very nature of things, become engines of great danger, imparting unusual peril and hazard to the lives and limbs of all the employees of the company who might be in charge of other engines and cars upon the main track, in the regular course of their employment, in conducting the business of the railroad company."

¶4 This was a reversible fan. The hood to the fan revolved upon an axle, and was fixed so that it would have probably been turned up by the force of an explosive, the end of the hood nearest the air shaft being thrown forward and the other end downward, considerable weight being on the end nearer the air shaft, against which the force of the explosion would strike. A board, referred to as a "door," is over the other end further away from the shaft to let it down. The force of the explosion striking the end of the hood, it would be raised, carrying the weight with it, and if the force were not sufficient to raise the hood and cause it to revolve more than a quadrant, the weight would carry it down to its usual position and the air current in that event would not be affected. The weight then pressing upon the end...