Cushing Gasoline Co. v. Hutchins
| Decision Date | 16 October 1923 |
| Docket Number | Case Number: 11387 |
| Citation | 93 Okla. 13,219 P. 408,1923 OK 782 |
| Parties | CUSHING GASOLINE CO. v. HUTCHINS. |
| Court | Oklahoma Supreme Court |
¶0 1. Pleading--Effect of Amendment--Admissibility of Original Petition as Admission.
When an amended petition is filed in a case and no part of the original petition is referred to, or adopted into the amended petition, such original petition is superseded and is no part of the record, and while it may be introduced in evidence by the adverse party, the same as any other writing signed by the party, subject to be explained, its contents cannot be considered upon the trial either as a part of the record or as admissions of the plaintiff, unless introduced in evidence.
2. Appeal and Error--Right to Review--Waiver of Action on Motion to Reopen Case.
A party who permits a case to proceed to judgment without having the court act upon a motion made by him must be deemed to have waived his right to have the same acted upon; and this court will not consider an alleged error of the trial court in refusing to sustain a motion to reopen the case and introduce further evidence unless the record affirmatively shows that the motion was acted upon by the court and exceptions taken thereto by the complaining party.
3. Master and Servant--Injuries to Servant --Negligence--Unsafe Working Place.
It is the duty of the master to furnish his servant with a reasonably safe place to work, and where the master fails to discharge such duty and the same constitutes the proximate cause of an injury to the servant, the master will be held liable for damages.
4. Same--Injuries to Oil Well Worker.
Where the master sends a servant to work on a "tubing board" which the master, either in person or through an employee, undertook to install or supervise the installation thereof, the master is answerable for injuries sustained by said servant, caused by the negligence of the master, or by the negligence of a fellow servant, in installing said "tubing board", if such negligence is the proximate cause of said injury.
5. Negligence--"Proximate Cause."
The proximate cause is the efficient cause, the one that necessarily sets other causes in operation. The causes that are merely incidental or instruments of a superior Controlling agency are not the proximate causes anti the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.
6. Master and Servant--Proximate Cause of Injury--Jury Question.
The question as to whether a negligent act involving a breach of duty on the part of the master to his servant is the proximate cause of the servant's injury, is one of fact for the jury, if there is any evidence reasonably tending to prove the same.
7. Same--Liability--Concurring Negligence of Master and Fellow Servant.
The master is liable for injuries to a servant due to the concurring negligence of the master and a fellow servant in cases where the injury would probably not have occurred but for the negligence of the master.
8. Same--Care and Prudence Required.
A person guilty of negligence involving a breach of his duty should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the facts and circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought of at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.
J. P. O'Meara, A. F. Moss, L. G. Owen, and J. C. Farmer, for plaintiff in error.
Thrift & Davenport and Gaylord R. Wilcox, for defendant in error.
¶1 This action was commenced in the district court of Creek county by Mrs. C. V. Hutchins to recover, on her own behalf and for her minor children, damages against the Cushing Gasoline Company for the death of C. V. Hutchins, her husband and the father of said minor children. A judgment was procured in the sum of $ 15,000, from which the defendant brings error. The deceased was a member of a "tubing crew," engaged in pulling or extracting tubing from an oil well. The "tubing crew," consisting of four men, was in charge of, and under the direction or supervision of Mr. Becker, as foreman of the lease on which this well is located; each member of the crew had a specific work to perform--one had charge of the engine, another worked on the platform of the derrick and connected and disconnected the wire cable from the "tubing" and unscrewed the "tubing" as it was being pulled, another had charge of the brake on the "bull wheel" about which the wire cable was wound, the function of the brake being to stop the "bull wheel" when it became necessary and thereby stop the ascension of the tubing as it was being taken from the well, and the deceased was working on the "tubing board," which consisted of two planks, each being about 12 inches wide and fastened together with cleats and either end of the "tubing board" rested upon "girts," which are timbers attached horizontally to the corner posts of the derrick. There was a piece of timber nailed to the "tubing board" which projected or extended over and beyond the edge of the "tubing board" and on the side thereof next to the wire cable, which extended perpendicularly from the "tubing board" to the "crown wheel" at the top of the derrick and passed over the "crown wheel" down to the "bull wheel" on which it was wound, and this piece of projecting timber is known as a "finger board." The "tubing board" was about 35 feet above the platform of the derrick and it was the duty of the deceased to stand on the "tubing board" and lean the joints of tubing, as they were pulled from the well and disconnected, back against the "finger board" to keep them from falling. When the "tubing crew" went to the well to pull this tubing, the regular "tubing board" man was sick and unable to work, and the foreman directed the deceased to go to work on the "tubing board," and he, together with Mr. Whitner, who worked on the platform, ascended the derrick, and acting under the direction of the foreman, moved the "tubing board" out from against the corner posts of the derrick to a point more nearly over the well. The deceased and Whitner nailed the "finger board" on, and adjusted the "tubing board," and put it in place under the direction of the foreman. The deceased started to nail the "tubing board" to the "girts" so as to make it more secure, but the foreman told him it was unnecessary and it would not fall off. Evidence was produced to show that if the "tubing board" had been securely nailed to the girts, the "finger board" would have been pulled off of the "tubing board" and the deceased would not have fallen. Working on a "tubing board" is more hazardous than working on a platform or the ground: the deceased had never worked on a "tubing board," which the foreman knew, but the deceased was not warned nor advised by the foreman of the increased hazard of the work on the "tubing board." While pulling the tubing, the wire cable, while slack, got behind the "finger board" and when the power of the engine was applied, the wire cable became taut, and the power of the engine, together with the weight of the tubing on the wire cable, pulled the cable no strongly against the "finger board" as to upset, or cause the tubing board to fall, thereby throwing the deceased to the platform and, in falling, the deceased's arm caught around and held to the wire cable and when he hit the platform his arm was caught between the cable and the "bull wheel" resulting in his death within a short time. The brake was applied by the foreman while the deceased was falling but it did not stop the "bull wheel;" the engineer failed to disconnect his clutch, and thereby release the power of the engine from the machinery and cause it to stop, although he had ample time to do so before the deceased became involved in the "bull wheel," but did disconnect the clutch, which stopped the machinery, after the deceased was wound about the "bull wheel." The assignments of error presented and argued by the defendant in its brief are a s follows:
¶2 Counsel for the defendant rely principally upon, and urge, the first two assignments of error in their oral argument and printed brief, for a reversal of this cause, and both propositions have been very thoroughly and ably presented. In the original petition and the first amended petition, the plaintiff alleges, among other things, that:
"* * * Notwithstanding the fall of the said Charles V. Hutchins and the dangerous position that he was thrown in by reason of the negligent acts of the defendant, its superintendent, foreman, agents and employees, as aforesaid, the said defendant, its superintendent, foreman, agents and employees, wrongfully, negligently and carelessly failed and refused to stop the running of said machinery, which was running in a wrongful, negligent, and dangerous manner, thereby causing the said rope line or cable to draw the said Charles V. Hutchins onto the 'bull wheel' shaft or other machinery in such manner that he, the said Charles V. Hutchins, was thereby immediately killed."
¶3 The defendant filed an answer in which it admitted this allegation of the plaintiff, the cause came on for trial and the opening statement of counsel for the plaintiff was made; the defendant then interposed a demurrer to the petition and opening statement of counsel for plaintiff, and objected to the introduction of any...
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