Dewey Portland Cement Co. v. Blunt

• Decision Date: 20 May 1913
• Docket Number: Case Number: 2913
• Citation: 132 P. 659,1913 OK 325,38 Okla. 182
• Parties: DEWEY PORTLAND CEMENT CO. v BLUNT.
• Court: Oklahoma Supreme Court

1913 OK 325

132 P. 659

38 Okla. 182

DEWEY PORTLAND CEMENT CO. v BLUNT.

Case Number: 2913

Supreme Court of Oklahoma

Decided: May 20, 1913

Syllabus

¶0 1.APPEAL AND ERROR--Verdict--Evidence. Where the question, whether or not the master has been negligent, depends upon the nice distinction between that which is reasonably safe and that which is not so, it is a question entirely of degree and one exclusively for the decision of the jury; and where a jury, with all the evidence before them, have found a verdict, this court on review will not interfere to disturb their finding, by setting aside the verdict on the ground that there was no evidence of neglect.

2.SAME--Master and Servant--Injury to Servant--Burden of Proof--Negligence. Though no one saw how the injury occurred, yet on the theory that the intestate was inexperienced, the work to be performed dangerous and hazardous, with no means of escape provided, no rope or anything to which the intestate might catch hold to effect an escape from the cement pit in which he had been assigned and placed at work by the master, or give signal of his danger, such negligence on the part of the master having been found by the jury to be the proximate cause of the injury, such finding will not be set aside by this court. (a) Plaintiff''s intestate, an inexperienced laborer, was directed by defendant to go into a large cement pit for the purpose of removing obstructions from a conveyor operated in the bottom thereof. The pit was constructed of cement, being about fourteen feet long, twelve feet wide, twenty feet deep; its walls being smooth and perpendicular. The pit was filled with finely ground or crushed rock, which was conducted therein by means of a chute. Such finely ground or crushed rock accumulated in said pit until the same was removed by the conveyor which operated horizontally at the bottom of said pit, carrying said finely ground rock therefrom. Such rock becoming damp, at times a crust formed on the top, thereby preventing the conveyor from carrying the same out of the pit. In this way large volumes of such finely ground or crushed rock accumulated. It was the custom of the defendant to send laborers into the pit to-break said crust so the conveyor would carry off such rock. It is plaintiff''s theory that the intestate was inexperienced, and, not having knowledge of the incidental danger, he was lowered into the pit by means of a small rope ladder, and the finely ground or crushed rock crumbled and covered the intestate, thereby smothering him to death; by the exercise of reasonable care the defendant would have known it was dangerous and hazardous to put said intestate in said pit under such circumstances. No means of escape were provided; no ropes or other means of ascent nor any signals were provided. Held, that a verdict, based on the theory that the negligence of the master in failing to provide means of escape, or signals, was the proximate cause of his death, would not be disturbed on review.

3. TRIAL--Refusal of Instructions. Although some of the instructions requested on the part of the plaintiff in error correctly define the law applicable to the issues in the case, yet, if the subject covered by said instruction was fairly covered in the general charge, no reversible error will operate on account of the refusal of the court to give the same.

B. A. Lewis, A. M. Keene, and E. C. Gates, for plaintiff in error.

J. P. O''Meara and H. H. Montgomery, for defendant in error.

WILLIAMS, J.

¶1 This proceeding in error is to review the action of the trial court in a certain cause wherein defendant in error, the relict of Joel E. Blunt, deceased, as plaintiff, sued the plaintiff in error, as defendant, for damages occasioned by the death of her said husband. The defendant in error will be herein referred to as "plaintiff," the plaintiff in error as "defendant," and Joel E. Blunt, the deceased, as the "intestate." The intestate at the time of his death, to wit, on or about the 21st day of December, 1909, was an employee of the defendant as a laborer at its cement plant. Under plaintiff''s theory of the case he had never worked for said defendant or for any cement company or plant, and had never had any experience in the character of work required of him by defendant, and knew nothing of the instrumentalities used in the performance of such work, and was totally ignorant of the dangers of such work prior to the time that he began his work at the pit on the afternoon of his death. About one o''clock in the afternoon he was directed by defendant to go into a large cement receptacle for the purpose of removing obstructions from a conveyor operated in the bottom of said pit. Said pit was constructed of cement, being about fourteen feet long, twelve feet wide, and about twenty feet deep; its walls being smooth and perpendicular. The pit was used by the defendant, as a receptacle for finely ground or crushed rock, which was conducted therein by means of a hopper or chute, or spout. Said finely ground and crushed rock would accumulate in said pit until the same was removed by a conveyor, which operated horizontally at the bottom of the pit, carrying such finely ground or crushed rock into other receptacles. By reason of said finely ground or crushed rock. becoming damp, it would, at times, form a crust on the top of the volume in said receptacle, thereby preventing the conveyor from carrying the same off. In this way large volumes, of such crushed rock accumulated in the pit. It was the custom of the defendant, when it could do so, to induce laborers to go into said pit and break said crust, and cause said conveyor to carry the crushed rock to an adjacent receptacle. To an inexperienced person this character of work was dangerous and hazardous. The intestate, being lowered into said pit by means of a small rope ladder, was suddenly and without warning overwhelmed and covered by said finely ground and crushed rock and smothered and died. The defendant by the exercise of reasonable care would have known that it was dangerous and hazardous to put said intestate in said pit under the circumstances. No means of escape were provided, neither were any ropes or other means of ascent from said pit, nor any signals, provided in case an accident should happen. By the exercise of ordinary care the defendant could have anticipated the danger and provided against the same. Intestate left surviving him his wife, the plaintiff, and two infant children, Gladys, age five years, and Alma May, two years. Those were his sole and only heirs at law. The defendant answered (1) by way of general denial, (2) contributory negligence, and (3) assumption of risk. The plaintiff replied by general denial. Defendant insists that there was not sufficient evidence to submit the cause to the jury. The record discloses substantial evidence to support the plaintiff''s theory as hereinbefore set out. True, there are substantial conflicts in the evidence on every material matter; but, the jury having determined that question adversely to the contention of the defendant, such finding is conclusive on review here. Defendant earnestly invokes the rule that "in case of an accident to an employee the fact of accident carries with it no presumption of negligence on the part of the employer, and it is all affirmative fact for the injured employee to establish that the accident, was the result of the negligence of the employer." Neeley v. Southwestern Cotton Seed Oil Co., 13 Okla. 356, 75 P. 537, 64 L.R.A. 145; Solts v. Southwestern Cotton Seed Oil Co., 28 Okla. 706, 115 P. 776; Phoenix Print ing Co. v. Durham, 32 Okla. 575, l 22 P. 708, 38 L.R.A. (N.S.) 1191. That this is the general rule cannot be controverted. See, also, to the same effect, St. Louis & S. F. R. Co. v. Gosnell, 23 Okla. 588, 101 P. 1126, 22 L.R.A. (N.S.) 892. But a master is bound to exercise reasonable care and diligence to provide his servant with a reasonably safe place in which to work, with reasonably safe machinery, tools, and implements with which to work, with reasonably safe material upon which to work, and suitable and competent fellow servants. When the master has so discharged these duties, then at common law the servant assumes all the risks and hazards incident to the particular employment or to the performance of the particular work, including those risks and hazards resulting from the negligence and carelessness of his fellow servants. Coalgate v. Hurst, 25 Okla. 588, 107 P. 657; Id., 225 U.S. 698, 32 S. Ct. 838, 56 L. Ed. 1262. True, in order for the plaintiff to prevail there must be evidence tending to show primary negligence or a breach of a duty on the part of the defendant. C., R. I. & P. Ry. Co. v. McIntire, 29 Okla. 797 119 P. 1008, and authorities cited above. In 1 Labatt on Master & Servant (lst Ed.) sec. 2, it is said:

"A proposition which has so frequently been enunciated by the court as to have become axiomatic is that, prima facie, a servant does not assume any risks which may be obviated by the exercise of reasonable care on the master''s part. In other words, the abnormal, unusual, or extraordinary risks which the servant does not assume as being incidental to the work undertaken by him are those which would not have existed if the master had fulfilled his contractual duties."

¶2 In section 3 it is also said:

"A second proposition, which is also beyond the reach of controversy, is that every, risk which an employment still involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants is assumed, as a matter of law, by each of these servants. This doctrine prevents recovery unless evidence is introduced which warrants the inference that the injured person was incapable of appreciating the risk from which his injury resulted. According to the standpoint taken, such evidence may be regarded either as tending to show that one of the essential elements of an

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