Covington Coal Products Co. v. Stogner
| Decision Date | 12 October 1937 |
| Docket Number | 27625. |
| Citation | 72 P.2d 491,181 Okla. 35,1937 OK 559 |
| Parties | COVINGTON COAL PRODUCTS CO. et al. v. STOGNER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where in an action to recover damages for wrongful death of an employee of a corporation, the action is against the corporation and one of its foremen, and a part of the allegations of negligence is failure to use ordinary care to furnish the deceased employee with a reasonably safe place in which to work, and there is evidence tending to show that it was a part of the duties of the foreman sued to superintend the work necessary to keep the place of doing the work in a reasonably safe condition, and there is evidence reasonably tending to show negligence of such foreman in this respect it is not error to overrule the separate demurrer of the foreman to the evidence of plaintiff.
2. In a civil action for damages for personal injuries all the plaintiff is required to do in order to establish his case is to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established by circumstantial evidence and the reasonable inferences that may be drawn therefrom.
3. It is not essential to the recovery of damages for personal injury to introduce life or mortality tables in order to show life expectancy, such tables are competent evidence, but they are not conclusive.
4. Where the rules and regulations established by the master are habitually disobeyed with the knowledge or express consent of the master, such rules and regulations will be regarded as waived, and the master cannot rely upon them to defeat an action by an injured employee or by the representative of a deceased employee.
Appeal from District Court, Le Flore County; Ben W. Belew, Judge.
Action by Maud Stogner, administratrix of the estate of Roy E. (Bill Stogner), deceased, against the Covington Coal Products Company and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
A. E White, of Poteau, for plaintiffs in error.
Claud Briggs, W. P. Morrison, and John Morrison, all of Oklahoma City, for defendant in error.
This is an action commenced by defendant in error, as administratrix of the estate of Roy E. Stogner, deceased, to recover damages from the plaintiffs in error, for the injury and death of Roy E. Stogner, because of the alleged negligence of defendants. The parties are hereinafter referred to as they appeared in the trial court.
At the time Roy E. Stogner received the injuries which later resulted in his death he was an employee of the defendant Covington Coal Products Company. Defendant Arthur McGowan was a "Slope Foreman" for the company. In part his duties were to keep the slope haulway, that is, the haulway through which coal and rock were transported from the coal mine, and supplies and tools were taken into the mine in cars operated by machinery in proper condition for the operation of the cars.
Plaintiff alleged in substance that the defendants were guilty of negligence in failing to provide deceased a reasonably safe place in which to work, in that at certain points in said "slope" the roof or "Top" was too low to permit safe passage; that in several places the clearance between the rails and the roof of the slope was not more than 38 to 40 inches; that the cars operated over said track when loaded extended to a height of from 30 to 40 inches, and that at one place where the clearance was but 38 to 40 inches a large metal spike had been driven into a timber across the top of the slope immediately over the travel or haulage way which spike protruded from the timber and extended downward with the "pitch" of the slope. That deceased, in the performance of his duties, was required to use an electric lamp attached to his cap and connected to a battery attached to a belt around his waist by a cord; that deceased was ordered and directed by his superiors to take a defective telephone box out of the mine and replace it; that in doing so he was directed to ride a "loaded trip" consisting of some four cars loaded with rock, and carry with him the telephone box; that, while riding the trip as directed, the cord connecting the lamp on his cap with the battery carried on his back, attached to his belt, caught on the protruding spike, whereby he was dragged from his position and caught between the car and the roof of the slope, and received the injuries which caused his death. He lived some 53 days and plaintiff sought recovery in one cause of action for his pain and suffering, and in a second cause for his death.
Defendant answered by way of general and specific denial, admitting, however, that plaintiff was administratrix, and that deceased was in the employ of the defendant coal products company. They alleged that his employment was that of a switchman, his duties being to switch the coal cars used in hauling coal from the mine, and couple and make up the "trips" preparatory to hauling same along the main slope. They then alleged that, at the time of the injury of plaintiff's decedent, the defendant coal company maintained a proper manway for ingress and egress into and out of said mine, and that it was the duty of deceased to use said manway as an exit from said mine in case he descended for any purpose to go to the top; that deceased was expressly forbidden by the rules of the company as well as the law of the state from riding upon any loaded coal car being hauled from said mine; that, if deceased did attempt to ride upon a "trip" of loaded cars as alleged in the petition, such conduct was wholly without the duties of decedent as a switchman, and was wholly without the knowledge or consent of defendants, or any of them, or any officer or agent of defendant coal products company; that, if deceased was injured as alleged, it was due to and proximately caused by his negligence, carelessness, want of care and disobedience of orders and of the law, all of which contributed to, concurred in, and proximately caused any injury plaintiff decedent may have suffered or sustained.
Reply was by general denial. The cause was tried to a jury resulting in a verdict and judgment of $1,000, on the first cause of action, and $5,800, on the second cause of action.
There are fifteen assignments of alleged error. They are presented under three propositions.
It is first contended that the verdict...
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