Fike v. Peters

• Decision Date: 22 October 1935
• Docket Number: Case Number: 22411
• Citation: 52 P.2d 700,175 Okla. 334,1935 OK 1009
• Parties: FIKE et al. v. PETERS et al.
• Court: Oklahoma Supreme Court

1935 OK 1009

52 P.2d 700

175 Okla. 334

FIKE et al. v. PETERS et al.

Case Number: 22411

Supreme Court of Oklahoma

Decided: October 22, 1935

Syllabus

¶0 1. Appeal and Error--Review--Conclusiveness of Verdict on Conflicting Evidence.

Where conflicting theories of the opposing parties each has reasonable support by competent evidence, and such conflicting theories are submitted to the jury by appropriate instructions, the verdict of the jury will not be set aside on appeal on any assignment of error that the verdict is not supported by the evidence.

2. Death--Action for Wrongful Death by Drowning--Pain Suffered After Submersion not Proper Basis for Damage.

In death by drowning, pain suffered alter submersion and prior to unconsciousness is so intimately connected with the death struggle as to form no proper distinct basis for damages.

3. Same--Elements of Damages Recoverable by Parents of Deceased Daughter.

The loss which one suffers by the death of a relative may be the loss of something which it was reasonably probable he would receive. Where the evidence shows the dependent condition of a surviving parent and the disposition of the deceased daughter to be such that there is a reasonable expectation that the daughter would have continued to contribute to the support of the parent, these facts should be considered by the jury in detraining the damages.

4. Appeal and Error--Trial--Right to Mistrial in Personal Injury Case Where reference Made to Defendant Carrying Indemnity Insurance--Questions by Plaintiff's Counsel Held not Prejudicial Error.

There is no hard and fast rule that requires the court to penalize the plaintiff by directing a mistrial because evidence that the defendant is protected by indemnity insurance is heard by the jury. However, if the plaintiff gets this matter into the case by questionable practice, the court upon proper application should penalize him by directing a mistrial. And if he deliberately sets out, though in an indirect way, to inform the jury by improper evidence or arguments that the loss, if any, will fall upon an insurance company, his conduct is deemed so prejudicial as to warrant a reversal of the judgment, if for the plaintiff, and the granting of a new trial; at least, where the evidence is conflicting, and the case is a close one on its facts, from the statements made and the questions asked by counsel in the present case, the defendants were not thereby prejudiced to the extent that it would warrant a reversal of the judgment.

5. Death--$ 10,000 Damages for Death of 14-Year-Old Daughter Held not Excessive.

Considering all of the facts and circumstances surrounding this case, the judgment of $ 10,000 rendered herein for the loss of services of a minor child during its minority and for the loss of contributions to the parents after majority is not excessive.

Appeal from District Court, Creek County; John L. Norman, Judge.

Action by Frank and Hallie Peters against E. G. Fike and E. G. Fike & Company for wrongful death of their daughter. Judgment for plaintiffs. Defendants appeal. Affirmed in part and reversed in part.

Allen, Underwood & Canterbury, for plaintiffs in error.

Glenn O. Young and Streeter Speakman, for defendants in error.

PER CURIAM.

¶1 This is an appeal from a judgment rendered in the district court of Creek county for the wrongful death, and pain and suffering endured by Frankie Peters, who was drowned at Sapulpa, Okla. While swimming with companions in a municipal swimming pool, she was drawn by force of suction into the mouth of a large siphon, installed by defendants for the purpose of lowering the surface of the water impounded by the dam in order to more conveniently construct a railroad trestle one-half mile up stream. The deceased was swept from the surface of the water into the mouth of the siphon three feet below, thereby severely lacerating and bruising her body and holding her fast until she was drowned, the force of the current being so great that men who were summoned were unable to remove her body in time to save her life. These siphons were installed in this public swimming pool without any notice to the public and without sign of warning, guard or protection.

¶2 The facts show that some years prior to the occurrence complained of in the plaintiff's petition and as disclosed by the evidence at the trial of this case, the city of Sapulpa, owning a municipal park along Rock creek, constructed a dam in the creek, and at the dam constructed a municipal bathing beach. The dam elevated the surface of the water in the creek by approximately ten feet at the dam and by several feet for a distance of over half a mile up the creek. At a point up stream nearly a hail mile from the dam, the creek was spanned by a railroad bridge and trestle of the St. Louis-San Francisco Railway Company.

¶3 The defendant E. G. Fike & Company entered into a contract with the railway company to replace the piers under the bridge. In order to more conveniently do so, the defendant E. G. Fike & Company, acting by its manager and agent, the defendant E. G. Fike, decided to drain the water from the swimming pool and creek. To do this defendants constructed, of oil field casing, two large siphons, which were installed in the swimming pool at the dam. The casing used was twelve inches in diameter, except that in one siphon a section of casing ten inches in diameter was used, constituting the intake. These siphons were so placed that the shorter ends extended into the water above the dam and the longer ends protruded over the dam and down stream. After they had been started and were siphoning, the defendants left them in place to complete the drainage of the pool.

¶4 It will be observed that in order to accomplish their purpose, the siphons would be required to have sufficient capacity to not only lift over the dam the volume of the wafer representing the natural flow of the stream, but also the reserve accumulation impounded behind the dam. This they had sufficient capacity to do, for the surface of the water was being lowered at the time the accident complained of occurred. The point near the dam at which the siphons were installed had for a long time been used as a municipal swimming pool. The public generally, but more especially boys and women and children, resorted there to bathe.

¶5 The siphons in operation obviously created a very real menace to the safety of persons swimming there. When they were being installed, agents of the defendant E. G. Fike & Company were warned of the danger, but despite this fact no signs were posted and no efforts made to protect the mouth of the siphons with guards. Experts differed to some extent as to the effect of the siphons upon the water in the pool. The force of the current at the intake was variously estimated at from 350 to 881 pounds; the volume of water flowing in the pipe, according to one of defendant's witnesses, was about 25 feet per second. Considerable expert testimony is in the record in regard to the currents created by the siphons upon the water at varying distances from the intake. All agreed, however, that the siphons set up currents in the water similar to those described by defendants' witness Cochran, which were of such nature that "any objects moving in the current of course would be acted upon by the force of the current."

¶6 Lay witnesses who saw the siphons in operation testified that upon the surface they could see the water swirl. Richard Carpenter, a boy playing near the dam, threw sticks and leaves into the water and watched them get into the swirl, be drawn down and up through the siphons and discharged at the other end. He stated that the swirl was sufficient to create a funnel-like hole in the water, which came and went; that a stick about a foot long would go through the pipe so you could see it come out at the other side of the dam. It seems that, perhaps due to the vagaries of the current feeding the siphons, at times the water at the surface would appear undisturbed, and at others the suction would become so great that objects would be drawn from the very surface with tremendous velocity down deep under the water and hurled at the rate of 25 feet per second through the pipes and out the exits some 27 feet down the stream.

¶7 The evidence disclosed that the casing of which the siphons were made had been cut, with a sharp instrument resembling a chisel, from the outside, in such manner that sharp steel projections some four inches long protruded inwardly about the periphery at the intake end.

¶8 On the occasion which gave rise to the case at bar, Frankie Peters, a 14-year-old girl, who had just graduated from the Sapulpa High School, went with a party of girl friends to the pool to swim. Unmindful of the lurking danger, the girls swam about in the vicinity of the siphons, to the dam and back, until about ready to depart, when Frankie Peters swam between the pipes, to the dam, and lay with one hand resting upon it. Then she turned, started swimming, took one stroke, and disappeared. At the time she went down she was near the 12-inch pipe. Her head was directly over the north siphon (12-inch-pipe) when she went down. All the minor details, as revealed by witnesses, concerning her exact position and movements at the time she was drawn beneath the water and out of sight cannot be reconciled. However, none of the witnesses seemed to be in doubt concerning the basic facts in which we are interested. Henry Coe, a boy who was sitting on the bank watching them swim, immediately upon her disappearance said to a companion, "I believe that girl was sucked in that pipe, because she went under so fast," and the same witness described what happened. He said, "Then she was just sucked under." After a time bubbles rose.

¶9 Aid was summoned. When the ten-inch siphon was inspected it was found that her lifeless body was wedged into it to her hips, feet first, with one arm also drawn into the siphon. Efforts to dislodge...