Ft. Smith & W. R. Co. v. Ketis

• Decision Date: 12 July 1910
• Docket Number: Case Number: 446
• Parties: FT. SMITH & W. R. CO. v. KETIS.
• Court: Oklahoma Supreme Court

1910 OK 213

110 P. 661

26 Okla. 696

FT. SMITH & W. R. CO. v. KETIS.

Case Number: 446

Supreme Court of Oklahoma

Decided: July 12, 1910

Syllabus

¶0 1. APPEAL AND ERROR--Discretion of Trial Court--Motions--Making More Definite and Certain. A motion to make more definite and certain is addressed largely to the discretion of the court, and its ruling thereon will not be reversed, except for an abuse of such discretion that results prejudicially to the complaining party.

2. APPEAL AND ERROR--Harmless Error--Motions--Making More Definite and Certain. The petition alleged that plaintiff as an employee of defendant was injured through the negligence of defendant in furnishing him an unsafe place to work, in that he was put to work at the bottom of an embankment which contained dangers not known to plaintiff nor obvious to him upon ordinary observation, but which were known to defendant, who neither imparted information thereof to plaintiff nor used reasonable care to protect him against such danger. Held, that the overruling of the motion to make the petition more definite and certain by stating the name of the officer, agent, or employee of defendant who had charge and supervision of the work at which plaintiff was injured and by whom he was placed to work at the place and time of his injury was not reversible error, where it appears from the evidence that plaintiff did not know the name of defendant's foreman in charge of the work, and no legal showing was made by defendant that it did not know the name of its foreman in charge of said work, or that it had been unable to prepare its defense for want of such knowledge, and because of the omission in the pleading complained of, or that it had been unable to ascertain because of any lack of such knowledge whether it could prepare a defense and obtain evidence in support thereof.

3. MASTER AND SERVANT--Injuries to Servant-- Questions for Jury--Assumption of Risk. Plaintiff, an employee of defendant railway company, was engaged under the order and supervision of defendant's foreman to load loose dirt into the cars of defendant at the bottom of an embankment on its line of railway. The embankment was from 10 to 14 feet high, and sloped from the top outward toward the track to the bottom at an angle of about 45 degrees. On the day preceding the accident, employees of the company, under the direction of the same foreman, had gone on top of the embankment and with line-bars and picks had dug six or seven holes three or four feet deep, about two and a half to three feet back from the edge of the embankment, and had cut the roots of a tree standing thereon which extended out through the top dirt of the bank, holding it in place. Plaintiff had never worked at this place before the day of the accident, and had worked there only a few hours on said day before the accident occurred. The evidence tended to show that he had no knowledge of such acts of the employees on the day previous, or of the condition of the embankment resulting therefrom, and that the same were not obvious to him upon ordinary observation, and he was not informed thereof by defendant. Plaintiff was injured while shoveling the dirt by the sliding of the top dirt of the embankment down upon him and breaking his leg. Held, that the court did not err in submitting to the jury the questions whether plaintiff's injury resulted from a risk assumed by him, or from the negligence of defendant.

Error from District Court, Logan County; John H. Burford, Judge.

Action by John Ketis against the Ft. Smith & Western Railroad Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Defendant in error, hereinafter called plaintiff, brought this action in the district court of Logan county against plaintiff in error, hereinafter called defendant, to recover damages for certain alleged personal injuries. He alleges that on the 2d day of November, 1903, he was in the employment of defendant for hire and reward, and was engaged in the work of loading dirt and earth into cars of the defendant at a place on defendant's right of way between the towns of Fallis and Meridian, in the territory of Oklahoma; that defendant did at that place and at that time set plaintiff to work along with other employees to shovel dirt and earth into its cars, and directed and prescribed the place at which plaintiff should perform his work; "that the said place at which the plaintiff was so set to work and engaged in said work by and in behalf of the defendant in his employment by, and duty to, the defendant, was near and adjacent to a bank of earth about 13 feet in height, and that, as the defendant well knew at the time, the said bank of earth was liable at any time to fall upon and against the plaintiff and do him great bodily harm and injury, and break his limbs, and maim, wound, and cripple him, and cause him great pain and distress, and permanently injure him, and all of which should have been, and was, well known to the defendant, but was unknown to the plaintiff and could not be ascertained by him by the exercise of any reasonable care or diligence, or by the exercise of any care or duty owing at any time by or from him." The trial in the lower court resulted in a verdict and judgment in favor of plaintiff for the sum of $ 1,158.30.

Charles E. Warner (Dale & Bierer, of counsel), for plaintiff in error.

C. G. Hornor, for defendant in error.--On assumption of risk by servant: Thomp. Neg. §§ 3912, 4822, 4823; Collins v. Greenfield, 172 Mass. 78; McCoy v. Westborough (Mass.) 52 N. E. 1064; Haas v. Balch, 56 F. 984; Hill v. Winston, 73 Minn. 80; Strouhlendorf v. Rosenthall, 30 Wis. 674; Taylor v. Railroad Co. (Ind.) 6 L. R. A. 584; Bantzor v. Iron Mining Co., 99 N. Y. 368; Am. Window Glass Co. v. Noe, 158 F. 777; Lynch v. Alleyn, 160 Mass. 248; Hanley v. Bridge Co., 127 Cal. 232; Thompson v. Railroad Co., 18 F. 239; McCabe v. Wilson, 17 Okla. 361.

HAYES, J.

¶1 (after stating the facts as above). The first assignment of error urged goes to the action of the court in overruling a motion by defendant to require plaintiff to make his petition more definite and certain. The alleged defects in the petition pointed out by the motion are that the petition fails to state the name of the person who directed plaintiff, while he was engaged in performing for defendant the services set forth in the petition, and fails to state in what capacity the agent, foreman, or employee of the company who had charge and supervision of the work being performed by defendant at the time and place wherein he was injured was working. No complaint is made of any uncertainty in what the petition alleges, but all complaint is directed to that which the petition fails to allege, and pertains to an extrinsic fact as to what evidence will be produced by plaintiff to support the allegations of his petition. Defendant cites and relies on the case of Atchison, Topeka & Santa Fe Ry. Co. v. O'Neill, 49 Kan. 367, 30 P. 470. In that case the only charge of negligence contained in the petition was:

"And this plaintiff avers that said injury occurred wholly without any fault or negligence on his part, and wholly because of the gross carelessness and negligence of said defendant, its agents and servants, in violation of all proper rules and regulations for the management and handling of cars under such circumstances."

¶2 A motion to make more definite and certain upon three different grounds was overruled by the trial court. The defects in the petition which the motion in that case asked the court to require plaintiff to cure were, first, that plaintiff be required to allege the name of the agent or employee of defendant whose negligent conduct or acts had injured plaintiff; second, that he set forth the facts constituting the negligence and carelessness of which he complained; third, that he set forth all the facts which show any violation of all the proper rules and regulations of the company for the management and handling of its cars. The appellate court held that the motion should have been sustained, and that the defendant company was entitled to know which of its agents was chargeable with the negligence or acts of omission complained of by plaintiff, and to know of what such acts consisted. The averments of the cause of action in that case consist entirely of allegations of general conclusion, and we think with the appellate court that the trial court erred in overruling the motion to make more definite and certain, but we do not understand the holding of the appellate court in that case to be that in every action where a corporation is sued to recover for an injury resulting from its negligence every officer, agent, or employee of the company responsible for such negligence or who contributed thereto must be named in the petition of plaintiff, and that the overruling of a motion to require such to be done is in all cases reversible error. A motion to make more definite and certain is in a large measure addressed to the discretion of the trial court, and its rulings thereon will be reversed only for abuse of its discretion. 6 Encyc. of Plead. & Prac. p. 280. Defendant's objection to the petition is not that it is so indefinite and uncertain that defendant is unable to ascertain therefrom the precise nature of the charge against it, and is unable to form or prepare a defense to the action, but that which it objects to in effect is that the petition fails to set forth the names of the particular witnesses which plaintiff may produce to sustain his action or which defendant may need to establish his defense. The petition charges that the defendant has committed certain acts resulting in injury to him for which he seeks to recover.

¶3 It is not complained that the allegations as to the acts of the defendant constituting plaintiff's cause of action are indefinite and uncertain. The motion only asks that plaintiff be required to name the particular officer or...