Grand v. St. Louis & San Francisco Ry. Co.
| Decision Date | 29 January 1924 |
| Docket Number | Case Number: 14660 |
| Citation | 221 P. 80,97 Okla. 111,1924 OK 97 |
| Parties | GRAND v. ST. LOUIS & SAN FRANCISCO RY. CO. |
| Court | Oklahoma Supreme Court |
¶0 1. Master and Servant--Defective Appliances--Proof of Negligence.
To hold the master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury. There must be some substantive proof of negligence, knowledge of the defect, or some omission of duty in regard to it must be shown.
2. Same--Action by Section Hand Against Railroad--Failure of Proof.
The evidence in this case carefully examined, and held, that it does not disclose actionable negligence on the part of the defendant, and that the court did not err in instructing a verdict for the defendant.
Commissioners' Opinion, Division No. 5.
Error from District Court, Choctaw County; George T. Arnett, Judge.
Action by Willie Lee Grand against the St. Louis-San Francisco Railway Company. Judgment for defendant. Plaintiff brings error. Affirmed.
R. H. Stanley, for plaintiff in error.
W. F. Evans, Ben Franklin, and Stuart, Sharp & Cruce, for defendant in error.
¶1 This is an action brought by plaintiff in error against the defendant in error to recover damages for personal injuries due to the alleged negligence of defendant in error.
¶2 The parties will be referred to as they appeared in the trial court.
¶3 The negligence alleged in the petition is that the plaintiff was an employe of the defendant, working as a section hand and that while working he was using a jack, which was being furnished by said defendant, in raising and lifting one side of the defendant's railway track, which was done by the aid of said jack and a bar; that by reason of the defective and worn and broken or bent condition of the said jack the plaintiff was injured in the following manner: that he had lifted the track a few inches and was in the act of lifting the said bar used for said purpose to catch another notch in said jack in order to lift the track to a greater height, when said jack tripped and jerked the said bar out of plaintiff's hands and threw the said bar downward with great force, and said bar so descending struck the plaintiff on the instep of his right foot, giving to the said plaintiff severe and grievous injury, thereby and then severely bruising said foot and breaking the bones and giving to the plaintiff permanent injury.
¶4 Plaintiff further states that at the time of his injury he was in the exercise of due care and diligence, working at his place of duty, and was injured by reason of defects in the aforesaid jack, which was one of the appliances used by said plaintiff in the business of said defendant, and that defects in said jack had not been remedied by reason of the negligence of the said defendant, and that the failure of said defendant to furnish to this plaintiff reasonably safe tools with which to work was the cause of said injury.
¶5 Defendant's answer, in addition to a general denial, for further and separate defense averred that if the plaintiff was injured at the time and place alleged in plaintiff's petition, which is not admitted, that his said injuries were due to his own negligence and carelessness and not to any negligence and carelessness upon the part of the defendant.
¶6 For reply the plaintiff denied each and every material allegation contained in defendant's answer
¶7 The case was tried before the court and jury and at the conclusion of all the evidence the defendant moved the court to direct a verdict for the defendant, which motion was sustained, to which action of the court the plaintiff then and there excepted. Whereupon the court directed the jury to return a verdict for the defendant, to which action of the court the plaintiff then and there excepted.
¶8 Judgment was rendered by the court upon the verdict of the jury. Motion for new trial was filed and overruled, to which action of the court the plaintiff at the time excepted, and gave notice of his intention to appeal to this court.
¶9 For a reversal of the judgment plaintiff in error assigns a number of specifications of error. The only error complained of in plaintiff's brief is the action on the part of the court in directing the jury to return a verdict for the defendant.
¶10 The argument made in plaintiff's brief in support of the contention that the judgment of the trial court should be reversed is to the effect that there was sufficient testimony introduced at the trial of said cause to require the trial court to submit the said case to the jury.
¶11 Counsel for plaintiff states in his brief that the plaintiff in error was not able at the trial of said case to prove that the catches of the jack were bent, but did prove the other allegations of his petition; that the jack was stiff; that it was not working properly; had heretofore been thrown aside as out of order and was a dangerous appliance.
¶12 The plaintiff testified that at the time he was hurt he didn't know the jack was in had order, but after he was hurt he learned it was in bad order, and that he learned that "by other people."
¶13 In testifying as to what causes a jack to trip plaintiff stated "that catch is bent sometimes and won't catch"; that he guessed it was but had never examined the jack, and finally that he "did not know."
¶14 A witness for the plaintiff testified that he was present when the plaintiff got hurt; that he was off from the plaintiff a piece and when he turned around plaintiff stated that "the bar hit him--tripped and the bar hit him." This witness testified that they used the jack every once in a while; that they had it with them all the time and that it worked a little bit stiff; that the jack looked new; that whenever they used a jack they just picked up the jacks and used them; that this particular jack had been in service about a month or two.
¶15 Another witness for the plaintiff testified that he was the man that got this jack and brought it out himself; that what he knew about this jack was that he got it out and ran this jack and never knew anything wrong about it; that he had never seen anything the matter with the jack; that it belonged to him and that he worked with it all the time.
¶16 The section foreman testified on behalf of the defendant to the effect that this jack was in good condition; that it was not stiff any more than anything new and not worn would be and the fact that a jack is stiff does not cause it to trip; that a stiff jack catches more readily than a loose one and that an old jack is more liable to slip; that he couldn't say how many times this jack had been used but he knew it had been used quite a number of times; that he first got the jack in question along the first part of April, and that it came out of the supply car as a new jack at the time he first got it.
¶17 Another witness on behalf of the defendant testified as follows:
¶18 This witness further testified that dirt or...
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...the jury, there must be some substantial proof of negligence. Negligence must be established as an affirmative fact. Grand v. St. L. & S. F. Ry. Co., 97 Okla. 111, 221 P. 80. ¶12 Circumstantial evidence is permissible to prove affirmative facts of negligence, but such circumstances must not......
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...was of such a character as workmen themselves discover and remedy. In support thereof defendant cites and relies on Grand v. St. Louis-S. F. Ry. Co., 97 Okla. 111, 221 P. 80; Oklahoma Portland Cement Co. v. Shepherd, 47 Okla. 258, 147 P. 1031, and other authorities to the effect contended. ......
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