Highway Constr. Co. v. Shue

• Decision Date: 17 September 1935
• Docket Number: Case Number: 25853
• Citation: Highway Constr. Co. v. Shue, 1935 OK 802, 49 P.2d 203, 173 Okla. 456 (Okla. 1935)
• Parties: HIGHWAY CONSTRUCTION CO. v. SHUE, Adm'x.
• Court: Oklahoma Supreme Court

1935 OK 802

49 P.2d 203

173 Okla. 456

HIGHWAY CONSTRUCTION CO. v. SHUE, Adm'x.

Case Number: 25853

Supreme Court of Oklahoma

Decided: September 17, 1935

Syllabus

¶0 1. EVIDENCE--When Verdict Based on Speculation and Conjecture.

A verdict of a jury must be said to be based upon speculation and conjecture when, after considering all the evidence favorable to plaintiff, together with all inferences to be reasonably drawn therefrom, and excluding all evidence favorable to defendant, all unprejudiced minds must agree, from the facts and circumstances in evidence, that any one of several conclusions consistent with nonliability of defendant may as reasonably be drawn therefrom as is the conclusion of liability under plaintiff's theory of the case.

2. NEGLIGENCE--Proximate Cause of Injury--Degree of Proof--Circumstantial Evidence.

In a civil case all that the plaintiff is required to prove in order to establish causal connection between defendant's negligence and plaintiff's injury, is to make it appear more probable that the injury came in whole or in part from the defendant's negligence than from any other cause, and this fact may be established from circumstantial evidence.

3. SAME--When Verdict Based on Conjecture and When not.

If any one of several other conclusions is as consistent with the facts as is the conclusion that the negligence caused the injury, then the verdict may be said to be based upon conjecture, but if those other conclusions are not as consistent with the facts as is the conclusion that the negligence caused or partly caused the injury, it cannot be said that the verdict is based upon conjecture.

4. EVIDENCE--Inference Based on Inference not Permissible.

While one reasonable inference resulting from a proven fact or facts may be considered as evidence in itself, it cannot be utilized as a basic proven fact for the generation of further, additional inferences.

5. SAME -- NEGLIGENCE--Sufficiency of Circumstantial Evidence to Establish Causal Connection.

Where a causal connection is sought to be established by circumstantial evidence, there are two important questions: (1) Does the inference of causal connection spring directly and reasonably from the facts in evidence, as distinguished from arising out of another inference interspersed between it and the facts? and (2) Is there evidence to sustain the conclusion of greater probability that the injury came in whole or in part from the defendant's negligence than from any other cause? Usually, if those questions are answered in the affirmative, the causal connection is considered established, otherwise not.

6. SAME--Truck Tracks and Other Facts Held to Warrant Inference That Truck Left Road and Went Over Embankment Because of Chug Holes in Road.

Truck tracks, if clearly identified as having been imprinted by the truck in question, leading directly from an unusually rough or abrupt series of chug holes in the road out into soft dirt and over the side of the embankment down to the overturned truck, coupled with the independently proven facts that the driver was being hurried, that such chug holes frequently deflect the front wheels, and that the driver was on the road immediately beforehand, constitute a fact situation warranting the inference that the truck left the road because of, or partly because of, the chug holes.

7. MASTER AND SERVANT--Action for Negligent Death of Truck Driver Engaged in Highway Construction--Whether Duty of Employer to Provide Guard Rail Along Side of Embankment Under His Control Held Question for Jury.

Whether the employer should provide a guard rail along the side of an embankment under his exclusive control, as a safety measure against truck driving employees being thrown over the side of the embankment from exceedingly rough roadway thereon, in keeping with his duty to provide workmen a safe place to work, is a question for the jury under the facts of the particular case.

Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.

Action by Virginia Shue, as administratrix of estate of her deceased husband, William Shue, against the Highway Construction Company for wrongful death of husband. Judgment for plaintiff, and defendant appeals. Affirmed.

Hudson & Hudson and T. A. Aggas, for plaintiff in error.

C. E. Baldwin and Bailey E. Bell, for defendant in error.

PHELPS, J.

¶1 William Shue was accidentally killed while working for the Highway Construction Company. His widow, administratrix of his estate, recovered a verdict and judgment of $ 7,500 against the construction company on the theory that his death was caused by its negligence in failing to maintain its roadway in a safe condition.

¶2 The defendant contends that the evidence was insufficient to sustain the verdict, which was based wholly on conjecture, speculation, or surmise. It is therefore necessary to review the evidence:

¶3 The defendant was constructing a highway between Blanchard and Tabler, Okla. It employed between 30 and 40 truck drivers to haul material from Blanchard to the mixer, which at the time of this accident was about six miles west of Blanchard. They were laying the cement slab over the prepared roadbed, the work progressing toward Blanchard. Thus the material was hauled over the portion of the road which had not yet been paved. The road was closed to the public and under the exclusive control of the defendant.

¶4 Shue was one of the truck drivers. The truck belonged to one Moore, from whom he rented it. Moore paid the upkeep cost, Shue furnished the oil and gas and repairing, and the defendant paid him so much per mile per load. However, the defense of independent contractor has not been seriously urged and is not here considered. Formerly the truck had been in defective condition, but there was uncontradicted evidence that it had since been repaired.

¶5 In hauling the material between Blanchard and the mixer, over the unpaved road, it was necessary for the drivers to travel over a "fill" which the defendant had heightened, between two hills. The fill had been constructed by piling up dirt and settling it, preparatory to paving, by what is known as ponding and jetting. By such process water is forced into the earth material by the use of pipes driven therein, and is made to scak into it by diking small ponds of water on the top of the fill. This solidifies the foundation more quickly than if the dirt were allowed to settle of its own weight. When this accident occurred the subsoil was still damp and spongy, but the top was dry and so dusty that, as one witness put it, "you could hardly see the road."

¶6 The fill was about 300 feet long and 12 feet high, the sides sloping steeply downward, and at the bottom there was a pond of water. A guard rail had formerly existed along the old road on this side, which was lower than the present road, but it had been removed by the defendant and the post and wire, or cable, were still lying along the side of the fill.

¶7 Shue had delivered a load to the mixer and was hurrying back, empty, to Blanchard for another load. He was hurrying because the mixer was automatically timed to receive successive loads every minute and a half, the trucks employed this day were fewer than usually employed, and the foremen were rushing and speeding up the drivers. A truck driver, in crossing the fill, discovered Shue's truck overturned in the pond below, with Shue's head pinned under the truck, in the water. His legs were moving. Workmen who quickly congregated could not remove the truck by hand and so they lifted it by tying the old guard line to it and pulling with another truck. By that time Shue was dead, apparently from drowning.

¶8 Due to the spongy nature of the subsoil, the freshness of the structure, and the exceedingly heavy truckloads of material constantly being hurried across it the top of the fill was full of chug holes. Every few days a scraper was drawn over it, but it was said that this only filled the chug holes with loose dirt and they would instantly reappear. On the day of the accident the north half of the fill was impassable and the south half was full of chug holes. Witnesses testified that at the place where the accident occurred the driver had to go "dangerously near" the outer edge of the fill, with but a foot or two to spare before going over the edge. Though no one saw the accident, many witnesses testified that the tracks were plainly visible, and that although they could not be traced to any particular chug hole, they did proceed from an unusually rough place in the road some ten feet or more from where they went over the edge. The two right wheels apparently moved along in the loose dirt outside of the ruts and then gradually down the side of the fill for a distance estimated from 20 feet to 40 feet, after which there were no more tracks, at which place the truck turned over and rolled into the water. There was testimony that often when a truck would hit one of these chug holes it would deflect the front wheels first one way and then the other way, causing temporary loss of control, and that once a wheel got in the loose dirt it was difficult to steer it back onto solid ground.

¶9 The defendant does not seriously urge that the evidence was insufficient to sustain a finding of negligence based on the condition of the roadway. The defendant does contend that the plaintiff failed to show a...