Cosden Pipe Line Co. v. Berry

Decision Date25 July 1922
Docket NumberCase Number: 12215
Citation210 P. 141,87 Okla. 237,1922 OK 251
PartiesCOSDEN PIPE LINE CO. v. BERRY.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Master and Servant--"Vice Principals."

Where an employee is in charge of the master's business or any department thereof, whose duties are exclusively supervision, direction, and control of the work over a subordinate employee engaged therein, whose duty it is to obey him, he is a vice-principal, notwithstanding he may be subject to general orders or superintending control of a general manager.

2. Same--Liability for Injury by Fellow Servant.

The master is not an insurer of the safety of his servant; neither is the master required to superintend and direct the manner of the execution of minor details, and where such has been negligently done by a servant to the injury of a fellow servant, the master would not be liable.

3. Negligence--Contributory Negligence and Assumption of Risk--Jury Questions--Issues and Proof--Instructions.

Under a constitutional provision requiring it, contributory negligence is a question which the court must never decide, but it must be submitted to the jury for their determination, but contributory negligence on the part of the plaintiff presupposes negligence on the part of the defendant. Before the question of contributory negligence on the part of the plaintiff can arise, negligence of the defendant must first be shown. If there is no negligence upon the part of the defendant shown, and the negligence of the plaintiff only, or of his fellow servant, caused the injury, then it is primary, not contributory, negligence on his part, and there can be no case to go to the jury. Contributory negligence is a matter of defense and must be pleaded. The question of assumption of risk is also a matter of defense and must be pleaded, and is also, under our Constitution, a matter for the jury to decide; but in both instances it is the duty of the trial court to properly instruct the jury upon the law of both defenses.

4. Pleading--Sufficiency of Petition--Method of Objection.

Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.

5. Master and Servant--Liability for Injuries to Servant--Failure to Safeguard Work.

The obligation of the master to the servant to provide a reasonably safe method for the performance of his work is one of the master's nondelegable duties, the neglect of which imposes a liability for resulting injury, irrespective of any fellow servant.

6. Same.

Where an employee is killed while assisting in dismantling a water tank built of two-by-sixes, 16 feet long, held in place by iron hoops riveted together, and the tank is caused to collapse by the removal of the iron hoops, and if such death is due to the negligent act of one in charge of the work in failing to provide some safe method of performing the work, the master cannot avoid liability upon the ground that the negligence was that of a fellow servant, since it is held that it is a primary duty, and nondelegable, of the master to provide a safe method of work, and if negligence existed in this respect, it was negligence in the general method of the work, and not a mere detail of its performance, and arising during the progress of the work.

7. Same.

Even though a servant assumes the known and obviously increased hazards of a work which, by reason of the character of the work, becomes more dangerous as the work progresses, yet a master in such case is not absolved from any duty to furnish a safe place to work, but must use ordinary care to make the place where his servant works as safe as it can be made under the conditions of the work to be performed.

8. Appeal and Error--Prejudicial Error--Abstract Instructions.

As the very purpose of instructions is to aid the jury in arriving at a proper verdict in the case, the jury should be informed in clear, plain, and concise terms as to the law which is applicable to the particular case under consideration, and it is improper and erroneous for a court to give instructions to the jury which are not applicable to the case in any of its phases but which are mere abstract statements of the law. This rule holds good although the instructions contain correct statements in this respect, for the jury is not concerned with what the law may be generally, but only with that very small portion of its which must govern the particular matters under consideration. It is, then, the plain duty of a trial court to refrain from giving abstract instructions of its own motion, or at the request of either party. The principal and very forcible objection to abstract instructions, however correct in themselves, is that they may be misleading, in that they tend to draw the minds of the jurors away from the real facts in the case to something which they assume to exist, but which cannot be found in the record. Whether an abstract instruction will call for a reversal of a case depends on the determination of the question whether as a result of the instruction prejudice resulted to the complaining party. It is generally agreed that legal abstractions in a charge are not always hurtful and, unless it appear that they may have been so, the giving of the same while never to be approved, is not reversible error. But if an instruction, although unobjectionable as an abstract proposition of law, is calculated to mislead the jury and affect their conclusion upon the issue submitted to them, it will call for reversal. Still while abstract instructions are not generally ground for reversal, it is the better practice to omit or refuse instructions of that character. (14 R. C. L. par. 49, pp. 782-784.)

9. Same--Harmless Error--Instructions.

It is only when an erroneous instruction has resulted in prejudicing the rights of the complaining party that the judgment will be reversed, and it is the general rule that such action will not be taken by the appellate court for error in giving or refusing to give instructions if the verdict is manifestly right, or if it appears from the evidence that no other verdict should have been properly returned by the jury under instructions entirely correct. Another rule well settled by the authorities is that erroneous instructions will not be ground for reversal where it clearly appears that the jury were not influenced thereby. (14 R. C. L. par. 74, pp. 815-817; Horton v. Early, 39 Okla. 99, 134 P. 436.

10. Same--Instruction on Contributory Negligence.

An instruction which states that the burden of proof is upon the defendant to establish a definition of contributory negligence is not open to the objection that the jury might have been misled when none of the evidence of plaintiff tends to prove contributory negligence.

11. Evidence--Res Gestae--Negligence--Other Acts of Negligence.

While all the circumstances of the transaction under investigation which constitute the res gestae of the occurrence are admissible in evidence, and in this way evidence of acts of negligence not alleged may be received for consideration by the jury, still this is solely for the purpose of determining whether the specific acts of negligence alleged in the petition have been established. No matter how much evidence there may be of acts of negligence admitted under the operation of this rule, there can be no lawful recovery unless one or more of the specific acts of negligence set forth in the petition have been established to the satisfaction of the jury. The other acts of negligence admitted as a part of the res gestae of the transaction may be looked to, to throw light on the question as to whether the specific acts of negligence relied on have been established, but, no matter how well established such other acts may be, the jury are not authorized to find in favor of the plaintiff unless at least one of the specific acts alleged has been proved to their satisfaction.

12. Trial--Refusal to Give Abstract Instruction.

It is not error for a court to refuse to give a requested instruction although it may correctly state an abstract proposition of law, where there are no facts adduced that could constitute a basis for said instruction.

13. Appeal and Error--Questions of Fact--Verdict Conclusive--Sufficiency of Petition--Damages for Death of Servant.

The evidence in this case has presented questions of fact to the jury upon the following propositions: First. Was Earl Gay a vice principal within the terms defined in the instructions? Second. Was the method used by the defendant company in dismantling the tank a reasonably safe method? Third. Was the place to which the deceased was assigned to work a reasonably safe place in which to work? The jury having found adversely to the defendant company, it is held that the said verdict is reasonably sustained by competent evidence. It is held, furthermore, that the allegations in the petition in this case, in the absence of a motion to make more definite and certain and of a demurrer raising its sufficiency, are sufficient to raise an issue on the three propositions stated above.

Error from District Court, Kay County; J. W. Bird, Judge.

Action by May M. Berry, as the surviving widow of A. B. Berry, deceased, against Cosden Pipe Line Co., a corporation, for damages for negligent death. From judgment for plaintiff, defendant appeals. Affirmed.

J. C. Denton, Chas. E. Bush, L. G. Owen, and A. F. Moss, for plaintiff in error.

E. E. Glasco, Roy Glasco, and G. A. Chappell, for defendant in error.

ELTING, J.

¶1 This suit was commenced by the plaintiff below, May M. Berry, against the Cosden Pipe Line Company, a corporation, defendant below, on the 9th day of January, 1920, by filing...

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  • Miller v. Price, Case Number: 22004
    • United States
    • Oklahoma Supreme Court
    • May 29, 1934
    ...an abstract proposition of law, where there are no facts adduced that could constitute a basis for such instruction. Cosden Pipe Line Co. v. Berry, 87 Okla. 237, 210 P. 141; Eves Tall Chief v. Aaron, 87 Okla. 230, 209 P. 915: Perry v. Cobb, 4 Indian Terr. 717, 76 S.W. 289; City of Lawton v.......
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    ... ... v. Richmond, 172 Miss. 407, 159 So. 850; Cosden Pipe ... Line Co. v. Berry, 87 Okla. 237, 210 P. 141; Chicago ... R. Co ... ...
  • Farmers Nat'l Bank of Sulphur v. Bell
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    • January 21, 1936
    ...389; Oklahoma City Land & Development Co. et al. v. Adams Engineering & Blueprinting Co., 51 Okla. 763, 155 P. 496; Cosden Pipe Line Co. v. Berry, 87 Okla. 237, 210 P. 141; Throm v. Hollister, 92 Okla. 233, 219 P. 115; Cole v. Ramsey, 124 Okla. 235, 254 P. 962. ¶21 We find no merit in this ......
  • Cosden Pipe Line Co. v. Berry
    • United States
    • Oklahoma Supreme Court
    • July 25, 1922
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