Fisher v. Prairie

• Decision Date: 10 May 1910
• Parties: FISHER v. PRAIRIE.
• Court: Oklahoma Supreme Court

109 P. 514

26 Okla. 337, 1910 OK 133

FISHER v. PRAIRIE.

Supreme Court of Oklahoma

May 10, 1910

Syllabus by the Court.

It is the duty of a master who has actual knowledge that a servant is inexperienced in the work for which he is employed to use reasonable care in cautioning and instructing such servant in respect to the dangers he will encounter, and how best to discharge his duties, and he is not relieved from such duty by the fact that the servant solicited the employment and represented himself to be competent; nor does the servant by reason of such fact assume the risk from dangers of the employment of which he is ignorant, and as to which he has been given no reasonable instruction, although they are ordinary hazards of the service, unless they are so obvious that even an inexperienced man would escape them by the exercise of ordinary care. (a) The duty of qualifying an inexperienced servant for the performance of new and dangerous duties is a personal duty of the master, who is responsible for the proper qualifications of any persons to whom it is delegated, and for their negligence in failing to continue the instruction until it is completed.

A servant impliedly assumes the risks incident to the service he contracts to perform, and, in the absence of knowledge to the contrary, the employer may assume, as between them, that one applying for a particular employment possesses the skill and judgment requisite to the safe and proper performance of his duty; but if the employment be dangerous, as known to the master, who has also reason to know that the servant is inexperienced or without capacity, such servant, even with his own consent, cannot be required to assume the risk therefrom, unless he is cautioned and instructed sufficiently to enable him to reasonably comprehend the dangers, and to do the work safely, with proper care on his own part. (a) A statement by one applying for work in the electrical department of an electric railway and electric light system that he had had experience in that kind of work, who was then employed only as a helper to a lineman, did not justify the foreman or master afterwards in requiring him or assigning him to do work which required experience and knowledge of an experienced electrician to do with safety to himself, without giving him proper instructions.

Plaintiffs' intestate was employed as a lineman's helper in the handling of electrical appliances or wires conducting currents of an electrical railway and electric light system. At said time he had the appearance of being a common laborer the master or foreman having knowledge that he had worked in the railroad shops as a boiler maker's helper and in a plumbing and electrical supply establishment as a plumber's helper, where occasionally he assisted the electricians in inside house wiring, his employ in that capacity not being of great hazard. After about 45 days' service as helper to the lineman, with his consent, he was assigned to the duty of a troubleman, which required him to investigate all reports as to trouble in regard to the wires carrying electric currents, including those of high voltage and defective transformers. In order to do this, it was necessary for him to climb electric poles upon which such wires were strung, such work being extrahazardous, and, in order to be done with reasonable safety, required the skill and knowledge of a party experienced in such work. The foreman, without any specific instructions or warnings advised him that such work was dangerous. Held that, on such evidence, a motion to direct a verdict for defendant was properly overruled.

Error from District Court, Pottawatomie County; W. N. Maben, Judge.

Action by Mollie Prairie, for herself and as next friend for Olen Prairie, a minor, against J. C. Fisher, receiver of the Shawnee Light & Power Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

Flynn & Ames and J. H. Maxey, for plaintiff in error.

F. H. Reily and Paul F. Cooper, for defendant in error.

WILLIAMS J.

It is essential to pass on the following questions raised on this record: (1) The denial of defendant's motion for a peremptory instruction in its favor. (2) Alleged error in giving, at the instance of the plaintiff, instruction No. 1.

1. The intestate at the time he entered the employ of the defendant (plaintiff in error) had never had any experience in handling of electrical appliances or wires conducting currents of high voltage such as the wires conducting the current of the electric railway and electric light system under the management and control of the plaintiff in error. He was about 24 years of age at the time of his death in the fall of 1905. Prior to 1901 he had worked on a farm as a laborer. Soon thereafter he moved to Shawnee, and went to work in the railroad shops as a boiler maker's helper. After about two years, he began work for a plumbing and electric supply company as a plumber's helper, continuing in that capacity for about 18 months, having had no experience with electricity prior to that employment, and during this time occasionally assisted the electricians to do inside house wiring, never having to do, however, with high currents or being exposed to any dangers of injury. From this employ he went to the plaintiff in error, where he was engaged merely as assistant to the lineman. After being in such employ for about a month and a half, he was assigned to the work of what was known as a "troubleman," and was engaged in this capacity for not over two weeks prior to his death. His duties in this position required him to go out and investigate and find out when the appliances or lines carrying currents of high voltage were out of order, and the evidence would justify the jury in finding that the master or superior intended for him at times to fix same. There was also evidence that he represented himself at the time of his initial employment to have knowledge of electricity, but at this time the master relied upon the same only enough to put him to work in the capacity of a lineman's helper and paid him only a helper's wages. At the time that the intestate answered the trouble call, meeting his death, according to the evidence of U.S. Hart, the general office man of the plaintiff in error, said intestate came in and stated "that there was some trouble with a transformer, and he called for the testing instruments, and I told him where he could find them. He also asked for a helper, and I instructed him to get any one whom he desired to assist him in the work, and I also cautioned him very particularly to take care of himself and keep clear of any danger. *** Well, I spoke very forcibly in regard to being careful. *** I said to him: 'Phil, you want to be damn careful.' That was my expression. *** Well, I had talked to Mr. Prairie times before this, not only to him, but to all the other men that were connected with the line work, and also stationary work, and cautioned them, and cautioned Mr. Prairie, not only Mr. Prairie, but Mr. Payton and others always, to be very careful, and, if it was necessary, that rather than go into a place that was dangerous that we would close the plant down any time rather than have them jeopardize their lives or attempt to do any work that they knew to be hazardous or extrahazardous. *** I could not recollect the exact conversation except that he was very confident that he was capable of taking care of the proposition. ***"

Frank Peyton, an electrician in the employ of the plaintiff in error, testified as follows: "Q. Do you know what experience Prairie had in handling, repairing, and investigating transformers? A. Yes, sir; he had experience along with me while he worked there. Q. Do you know whether he fully understood them? A. Well, he understood the handling of them; that is, putting them up and disconnecting them, and fusing them, as we call it. Q. Do you know whether or not he understood all the details of a transformer? A. I don't know. *** Q. Now, if he was sent to investigate a transformer, you don't know whether he would know or not what the matter with it was? A. He would know whether there was a fuse out. Q. Did he understand the kind of work he was doing? A. Why, I thought he did. Q. Did you ever talk to him any about the danger? A. Yes, sir. Q. What conversation did you have with him on that subject? A. I told Mr. Prairie when he first applied for a position--told him it was a very dangerous occupation, and again and again I cautioned him about being careful on the poles. Q. You say that prior to the accident that he had had previous experience with transformers? A. Yes, sir. Q. What kind of work had he done? A. Well, he had done everything, I think, everything that had been done around the plant, around the lines, made the live wire connection, cutting out the transformers, and removing them, and fused them--just general line work. Q. Was there any other work to be done on transformers that he had not had experience in? A. I don't think there was anything done but what he had had experience in and understood." This seems to have been about all the warning that the deceased ever had from the master or any of his foremen. Other testimony went to the effect that it would take ordinarily two or three years' preparation in order for an ordinary person to prepare himself to understand so as to engage in such work with any reasonable safety. The question arises as to whether there is any evidence in this record reasonably tending to prove that the plaintiff in error was guilty of negligence. If so, the cause should have been submitted to the jury. See Schoner v. Allen et al., 105 P. 191.

Stated in general terms, the extent of the master's obligation in regard to imparting...