Gypsy Oil Co. v. Green

• Decision Date: 07 June 1921
• Docket Number: Case Number: 11361
• Citation: 1921 OK 218,82 Okla. 147,198 P. 851
• Parties: GYPSY OIL CO. v. GREEN et al.
• Court: Oklahoma Supreme Court

1921 OK 218

198 P. 851

82 Okla. 147

GYPSY OIL CO. v. GREEN et al.

Case Number: 11361

Supreme Court of Oklahoma

Decided: June 7, 1921

Syllabus

¶0 1. Master and Servant--Injury to Servant--Proof of Negligence--Safety of Tools. A master has some discretion concerning the kind of tools and appliances which he will use or furnish his servants. He is not required to furnish tools of any particular pattern or appliances constructed in any particular manner, provided the tools and appliances furnished are sound, reasonably safe, and perform the work which they are designed to do, and mere proof that he is using toots and appliances of a certain kind, if an accident happens in the use of them, does trot tend to show negligence unless it is coupled with some evidence--not mere speculation--that they were not properly constructed or properly performing their function.

2. Same--Burden of Proof--Presumption of Negligence. The fact that an employe is injured in the course of his employment, carries with it no presumption of negligence on the part of the employer, but such negligence is an affirmative fact for the injured employe to establish by the evidence.

3. Negligence--Question for Jury. Where, from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions respecting the question of negligence, such question is properly for the jury.

4. Master and Servant--Duty to Furnish Safe Place and Tools--Liability for Injuries to Servant. It is the undelegable duty of the master to exercise ordinary care to provide his servants a reasonably safe place to work, and reasonably safe tools, materials, and appliances with which to work, and a failure in either of these duties will subject the master to liability for all damages proximately resulting therefrom, through injuries to the servant.

5. Death--Recovery by "Children"--Amount. Under section 5281, Rev. Laws 1910, the right of recovery is not limited to children of a deceased father to losses suffered during their minority, and they may recover for probable pecuniary loss after they reach their majority, but the recovery had, whether by minor or adult children, must be based upon the reasonable expectancy of pecuniary benefit, of which they were deprived by the death of their father.

6. Same--Verdict--Excessive Recovery. Evidence examined, and held, that the verdict is excessive, and is not warranted by the facts proven.

James B. Diggs, Rush Greenslade, and William C. Liedtke, for plaintiff in error.

Jarrett & Speakman, for defendants in error.

NICHOLSON, J.

¶1 The parties hereto occupied reverse positions in the court below, and we will refer to them as they appeared there. The plaintiffs instituted this action against the defendant in the superior court of Creek county to recover damages on account of the death of their father, Henry Green. On the 28th day of November, 1919, a verdict was returned in favor of the plaintiffs for the sum of $ 20,000, upon which judgment was rendered. On December 30, 1918, the deceased was an employe of the defendant, and on said day he and other employes of the defendant were instructed to pull the tubing from one of the defendant's oil wells. In pulling said tubing, it was necessary for one of the parties engaged in said work to stand on a tubing board constructed in the derrick, a distance of about 40 feet from the ground, and to reach said tubing board it was necessary to climb a ladder attached to the derrick. The deceased attempted to climb this ladder to reach the tubing board and, when he had climbed said ladder a distance of about 20 feet from the ground, the same pulled loose from the derrick and fell with him, and by reason of such fall he sustained injuries which resulted in his death on the 22nd day of February, 1919. That part of the petition charging negligence on the part of the defendant is as follows:

"That said ladder was a part of the appliances, tools and machinery furnished by the defendant to said Henry Green to use in the course of his employment. That it thereby became the duty of the defendant to furnish the said Henry Green with a reasonably safe place in which to work and with reasonably safe tools, machinery and appliances with which to work. That the said defendant failed and made breach in its said duty toward the said Henry Green, in this, to wit: That the said ladder was improperly, inadequately, carelessly and negligently constructed, and nailed and fastened to the said derrick, and by reason thereof, the same was not reasonably safe for those who used it, and the said company had negligently and carelessly failed and refused to repair and to keep the said ladder so nailed and fastened to the said derrick as to make the same reasonably safe to protect and preserve the lives of those who used it.

¶2 "That on the last named date the said Henry Green while acting in the course of his employment, aforesaid, for the defendant company, without any fault or negligence on his part, and without knowledge on his part of the defective condition of the said ladder as above mentioned and set forth, the said Henry Green attempted to climb said ladder in the ordinary manner to perform his duties in assisting in pulling the tubing from the said well. That when the said Henry Green had climbed the ladder to the distance of about twenty feet, the said ladder, without fault or negligence on the part of the said Henry Green, and by reason of the fault, wrong, carelessness and negligence of the defendant as above stated, pulled loose from the top of the second section thereof, upon which the said Henry Green was then climbing, thus musing the ladder to swing backwards and downwards from the top, and at the same time to pry and pull loose from the bottom of said section, and to fall to the ground with the said Henry Green, and he failing a distance of about twenty feet, was thereby thrown upon the ground on his head and face, thus crushing, bruising and injuring his head, face and back and spinal column. That by reason thereof, three or four sections of the lower vertebrae were twisted, wrenched and fractured, and the said Henry Green did linger and languish and therefrom did thereafter die on the 22nd of February, 1919. "That the said death of the said Henry Green was caused by the said wrongful, careless and negligent acts and omissions of the said defendant, and the wrongful and negligent acts and omissions of the said defendant in failing to provide and furnish the said Henry Green with a reasonably safe place and with reasonably safe tools, equipment and machinery with which to perform the duties of his employment, while engaged in the employment of the defendant corporation, as above set forth, all without fault, carelessness, or negligence on the part of the said Henry Green. "That the said defendant company knew and had notice of the defective, unsafe and dangerous condition of the said ladder at the time of the happening of the said accident, and knew and had notice that said ladder was not constructed in a reasonably safe manner, and said defendants did not exercise reasonable care and diligence to repair or maintain said ladder in a reasonably safe condition, or by the exercise of reasonable and ordinary care and diligence it could have obtained such knowledge, and that had the defendant, exercised that degree of care and diligence as was commensurate with its duty in constructing and properly repairing and maintaining and nailing and fastening the said ladder to the said derrick, the accident herein complained of could and would not have, happened, and would have been avoided." To this petition the defendant filed a general demurrer, which was overruled and exceptions saved; and thereupon it filed answer, denying generally the allegations of the petition, and as further defenses pleaded contributory negligence on the part of said Henry Green, and the assumption of the risk of such employment by him. To which answer the plaintiff filed a reply, consisting of a general denial. The plaintiff in error makes 29 assignments of error and has argued them in two groups, the first of which is based upon the refusal of the court to sustain defendant's demurrer to the evidence of the plaintiffs, and to give the peremptory instruction requested by the defendant, and goes to the sufficiency of the evidence to sustain the verdict and judgment. The plaintiff in error argues that the ladder which fell with Henry Green had for approximately three years successfully withstood every test and strain to which it had been put, and had properly performed the functions it was intended to perform without injury to anyone, and without visible indication that the nails therein had become loosened by reason of the fact that the ladder had become covered and saturated with oil and paraffin; that the defendant was not required to construct this ladder in any particular way; that it was only obliged to exercise ordinary care to furnish its servants with a ladder so constructed and nailed as to be reasonably safe for the uses to which it...