Gypsy Oil Co. v. Ginn

• Decision Date: 11 January 1923
• Docket Number: Case Number: 13350
• Citation: 88 Okla. 99,1923 OK 15,212 P. 314
• Parties: GYPSY OIL CO. v. GINN et al.
• Court: Oklahoma Supreme Court

1923 OK 15

212 P. 314

88 Okla. 99

GYPSY OIL CO. v. GINN et al.

Case Number: 13350

Supreme Court of Oklahoma

Decided: January 11, 1923

Syllabus

¶0 1. Negligence -- Failure of Proof -- Instructions.

Where several grounds of negligence are charged and there is an entire lack of proof on any, it is the duty of the trial court to withdraw such allegations from the consideration of the jury, or by proper instruction to limit the jury to those allegations of negligence which are supported by the evidence.

2. Trial--Instructions--Covering Issues.

It is the duty of the court, upon request, to give proper instructions substantially covering the issues and evidence produced at the trial of the case, and it is fundamental error to fail to do so.

3. Same -- Abstract Instructions.

The giving of instructions which consist of correct abstract propositions of law, but have no special reference to the particular issues involved in the case on trial, is not compliance with section 5002, Rev. Laws, which requires the court to give general instructions to the jury.

4. Appeal and Error--Prejudicial Error--Insufficient Instructions.

Where the jury receives no specific instructions on the law applicable to the particular issues involved, such error cannot be held to be harmless under the provisions of section 6005, Rev. Laws 1910.

5. Master and Servant -- Relation of EmPloye--Being Elsewhere than Place of Work.

An employe, who unnecessarily leaves his employment and assumes a position of peril for his own pleasure or convenience, ceases to be an employe for the time being, and becomes either a trespasser or at best a mere licensee. This is true where an employe leaves his place of work and goes to another part of employer's premises which is not intended for his use.

6. Same -- Duty of Master to Guard Machinery.

The duty of an employer to guard machinery extends to a person employed while in the performance of his duty, but does not extend to a person acting outside the scope of his employment.

7. Negligence--Duty to Trespasser.

The only duty which the owner of premises owes a trespasser is not to willfully or wantonly injure him, or, if discovered in a perilous position, it owes him the duty to exercise ordinary care to avoid injuring him.

8. Same--Question for Court or Jury--Insufficiency of Evidence.

If the evidence is such that reasonable men might reach different conclusions as to the negligence of defendant, the question of negligence is one for the jury; but where the evidence shows that defendant has breached no duty it owes to the plaintiff, and is such that all reasonable men must reach the same conclusion as to the negligence or want of negligence on the part of defendant, it becomes a question of law for the court, and in this case the evidence has been examined, and it is held insufficient to submit to the jury.

Error from District Court, Carter County; B. C. Logsdon, Judge.

Action by Mrs. Tessie Ginn, for herself and as mother and next friend of Alfred and Hugh Ginn, against the Gypsy Oil Company for damages for death of Clarence Edgar Ginn. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

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

I. R. Mason and Geo. A. Ahern, for defendant in error.

COCHRAN, J.

¶1 The defendant in error instituted this action against the plaintiff in error in the district court of Carter county, to recover damages on account of the death of Clarence Edgar Ginn, husband of Mrs. Tessie Ginn and father of the other plaintiffs. The case was tried to a jury, and the jury returned a verdict against the plaintiff in error in the sum of $ 25,000, and the plaintiff in error has prosecuted this appeal. For convenience, the plaintiff in error will hereinafter be designated as defendant, and defendant in error designated as plaintiff.

¶2 The plaintiffs allege that Clarence Edgar Ginn was killed on the 17th day of November, 1919, by being caught in the machinery of a Star drilling machine which was owned and operated by the defendant. The plaintiffs base their right to recover on four grounds of negligence: (1) That the defendant failed to properly protect dangerous machinery and parts thereof; (2) that the defendant failed to post signs around its machines to forbid or prevent any person from being placed in or entering a place of danger on said premises; (3) that the deceased was in a dangerous place near the machinery and the defendant's employes knew of his presence and the dangerous position occupied by him, and, knowing such dangerous position and without warning to the plaintiff, defendant's employes started the machinery of the Star rig and the said Ginn was caught by the machinery and crushed to death; (4) that the Star rig was negligently constructed. It is alleged that defendant was guilty of willful and wanton negligence in all of said matters.

¶3 There is no dispute as to the facts, and, briefly stated, they are as follows: Clarence Edgar Ginn was employed by the defendant as a pumper on some part of its holdings, but at the time of the injury the deceased was not engaged in any work for the defendant, and neither was he doing anything in the course of his employment, but was at a different part of the premises of the defendant, where a Star drilling machine was being used by the defendant for pulling casing. There were only three men engaged in work for the defendant at this place, to wit, Austin, Conrad, and Bosha. The deceased was on the premises from 20 minutes to an hour before he met his death, and had been engaged in conversation with Conrad, with whom he was acquainted. The three men were swinging casing blocks and spooling slack when the deceased first came up, and the machine was then running or did run some during the time he was there and prior to the accident. The drilling machine is on wheels and is portable. The crank which struck the deceased and caused his death is attached to the shaft that runs on top of the sills and is about two and one-half feet long and projects from the frame of the machine about six inches and has a wrist pin to which a pitman can be fastened. The pitman was not fastened at the time of the accident. Soon after the deceased came up, Austin and Conrad got under the machine on their hands and knees in order to straighten the line out and spool it. Austin was pulling the slack and Conrad was straightening it out, and neither was facing the deceased. Bosha was on top of the machine until the line was ready to spool, when he went over the machine to the engine for the purpose of starting it. At the time he went to the engine, he saw the deceased on the walk at a safe distance from the crank. Neither Conrad nor Austin could see the deceased from the place where they were working, and he was in a place of safety when last seen by them. When Bosha went to the engine to start it, he was unable to see Ginn because of certain obstructions, consisting of the Sampson post, a large flange, a brace or two, and also the cable on the bull wheel. Just before starting the engine, Bosha called a warning to the men under the machine, and when they answered, "Ready," the engine was started and the revolving crank struck the deceased and killed him.

¶4 The defendant complains of the failure of the trial court to properly instruct the jury, and specially calls attention to the material part of instruction No. 1, which, after stating what the court considered to be the issues, is as follows:

"Under the issues thus raised by the plaintiffs and defendant, the sole question for determination is whether or not the death of Clarence Edgar Ginn resulted proximately from the willful and wanton negligence of the defendant, its servants, and employes, or whether the deceased by his own negligence contributed to the injury resulting in death"

--and instruction No. 2, which is as follows:

"The burden is upon the plaintiff in this case to establish each and every material allegation necessary to a recovery herein to your satisfaction, and by a preponderance of the testimony, and in this connection you are told that if you believe from the evidence admitted for your consideration, and by a fair preponderance thereof, that on the 17th day of November, 1919, Clarence Edgar Ginn was killed upon the drilling location of the defendant near the town of Graham, in Carter county, Okla., and that such killing resulted from the willful and wanton negligence of the defendant, the Gypsy Oil Company, its servants and employes, and if you further believe from the evidence, and by a fair preponderance thereof, that at the time of such death the said Clarence Edgar Ginn had an earning capacity of $ 135 per month, and that he was in good health and sober and industrious, and that he was and had theretofore been supporting and maintaining the plaintiffs, and that the plaintiffs had a life expectancy in the said Clarence Edgar Ginn of proximately thirty-three years, then and in that event it will be your duty to return a verdict in favor of the plaintiffs for such amount as you may find from the evidence they are entitled to receive, not to exceed, however, the sum of $ 50,000."

¶5 The court in instruction No. 51/2 eliminated from the consideration of the jury the second ground of negligence set out in the petition. No other instruction given by the court further defines the issues or in any way instructs the jury that it was necessary to find from the evidence that the defendant was guilty of some one of the other three grounds of negligence complained of by the plaintiffs. These instructions left it to the individual judgment of such juror to determine what he considered acts of negligence on the part of the defendant sufficient to entitle plaintiffs to recover in this case. Had the evidence justified the submission of the case on the several acts of negligence alleged, it was the duty of the trial court, by proper instructions, to tell the jury...