Indep. Cotton Oil Co. v. Beacham

• Decision Date: 12 September 1911
• Docket Number: Case Number: 1004
• Citation: 31 Okla. 384,120 P. 969,1911 OK 291
• Parties: INDEPENDENT COTTON OIL CO. v. BEACHAM.
• Court: Oklahoma Supreme Court

1911 OK 291

120 P. 969

31 Okla. 384

INDEPENDENT COTTON OIL CO. v. BEACHAM.

Case Number: 1004

Supreme Court of Oklahoma

Decided: September 12, 1911

Syllabus

¶0 1. NEGLIGENCE--Actions--Questions of Law or Fact. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.

2. STATUTES--Pending Proceedings--Mode of Procedure. No person has a vested right in any particular mode of procedure, and if, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute itself provides otherwise.

3. CONSTITUTIONAL LAW--Construction--Retroactive Operation. Section 1 of the Schedule does not exempt an action for damages for personal injuries, commenced subsequent to statehood, although the injury was inflicted prior thereto, from the operation of section 6 of article 23 of the Constitution, which provides, "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury;" nor from the operation of section 19, art. 2, of the Constitution, which provides: "The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil * * * cases in courts of record, other than county courts, shall consist of twelve men. * * * In civil cases * * * three-fourths of the whole number of jurors concurring shall have power to render a verdict. * * * In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein."

4. REMOVAL OF CAUSES--Time for Filing Petition--Effect of Amendment of Pleading. Where the time for filing a petition for the removal of a cause has expired, the cause is not rendered removable by the filing of an amended petition which does not state a new cause of action.

5. DAMAGES--Excessive Damages--Personal Injury. A verdict of $ 25,000 is held to be excessive where the evidence shows that the plaintiff was about twenty years of age, engaged as a common laborer, whose earning capacity was in the neighborhood of $ 1.50 per day at the time the injury occurred; that the injury necessitated the amputation of his leg below the knee, but was not accompanied by any complications other than the ordinary pain and suffering incident to injuries of that nature, and the same will be set aside unless a remittitur is filed for all of said sum in excess of $ 10,000.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by Roy Beacham, an infant, by his next friend, John Beacham, against the Independent Cotton Oil Company. Judgment for plaintiff, and defendant brings error. Affirmed on condition.

F. E. Riddle and Shartel, Keaton & Wells, for plaintiff in error

Dumars & Vaught, R. E. Gish, B. M. Parmenter, and R. B. Young, for defendant in error

KANE, J.

¶1 This was an action for damages for personal injuries inflicted prior to statehood commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, on the 22d day of January, 1908, subsequent to statehood, in the district court of Comanche county. The parties will hereafter be called plaintiff and defendant as they were designated in the court below. The allegations of negligence were, in substance, that the defendant maintained a cotton mill in Lawton, Okla., wherein was situated a certain large wheel known as an "idler wheel"; that the plaintiff, who was a boy about twenty years of age, was employed to oil the machinery in and about the idler wheel; that, by reason of the defendant not furnishing the plaintiff a reasonably safe place to work in, said plaintiff while engaged in oiling said bearings, without fault or negligence on his part, slipped into said idler wheel while same was revolving at a rapid rate of speed, whereby he was injured; that as a result of said injury it became and was necessary to amputate his right leg immediately below the knee, wherefore he prayed judgment in the sum of $ 25,000. The answer contained a general denial, alleged contributory negligence and assumption of risk upon the part of the plaintiff, and further alleged, in substance, that the court had no jurisdiction to hear and determine said cause for the reason that said defendant had filed its petition in due form, asking for removal of said cause from the state court to the federal Circuit Court, which said petition on its face showed that said defendant had a right to have said cause removed to said federal court. The reply was a general denial. On trial to a jury there was a verdict for the plaintiff in the sum of $ 25,000, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

¶2 Counsel for plaintiff in error in their brief present their grounds for reversal under seven subheads, as follows: First. Error in compelling the company to go to trial on the same date that the issues of fact were joined. Second. The evidence fails to show that defendant was guilty of any negligence. Third. The plaintiff assumed the risk incident to the work in which he was engaged when injured. Fourth. Error of the trial court in giving and refusing instructions. Fifth. The amount of damages awarded is excessive, and is shown to have been given by reason of the bias and prejudice of the jury. Sixth. Error in allowing the amended petition to be taken by the jurors to the jury room for consideration in arriving at their verdict. Seventh. Error in overruling and denying the petition to remove the case to the federal court.

¶3 Under the view of the case we take, the first error complained of would not warrant a reversal, so we will not notice it further, but will pass to the other assignments and take them up in the order assigned. The court below did 'not commit error by submitting the question of the negligence of the defendant to the jury. The negligence charged was that the defendant in the maintenance and operation of said mill maintained and used certain machinery, bearings, shaftings, and appliances which were placed at a distance of five and one-half feet from the top of said idler frame, but failed and neglected to provide runs or means of reaching said machinery and bearings for the purpose of oiling same or making repairs thereon, and that it became necessary, in order to reach the machinery and bearings so placed above the idler frame, to step or climb to the top of the idler frame to reach upward and outward to said bearings when it was necessary to oil the same; that no handhold, ladder, runway, or any other means of reaching the said bearings for the said purpose or purposes at the said times herein mentioned had been or were placed and supplied; that defendant negligently allowed the idler frame and a certain 2x4 used by plaintiff as a hand support to become oily and greasy; that plaintiff was inexperienced in the use of machinery and the dangers incident thereto; that it was necessary for him in oiling to steady himself by means of the said 2x4; that on the date of the injury the defendant had carelessly and negligently permitted the said scantling to become saturated with oil, all of which was unknown to the plaintiff, etc. We cannot agree with counsel for plaintiff in error that there was no proof that the machinery was not reasonably well protected, or that the plaintiff was not furnished with the ordinary facilities and appliances for the performance of his duties, and that the issue was therefore narrowed down to the question as to permitting the floors and scantling to become oily and slippery. The evidence tends to show that the only means that plaintiff had to oil the bearings was to walk along a 2x8 plank within a few inches of the revolving idler; that the height of the bearings was such that he had to stand on tiptoe to oil them; that after the accident the defendant provided a gangway, presumably for the purpose of making the oiling of the bearings more safe and convenient. Irrespective of the slippery condition of the floor and scantling, the jury may have found from the evidence that the failure to provide a gangway, which was later provided, was of itself negligence, and the proximate cause of the injury, which would constitute ample ground for recovery. We think there is evidence to sustain this theory, and the court below was therefore justified in submitting the cause to the jury on the question of the negligence of the defendant. The rule in this jurisdiction is:

"It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court."

¶4 The question of assumption of risk and contributory negligence is settled by section 6, art. 23, of the Constitution, which provides:

"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times be left to the jury."

¶5 Counsel for defendant take the position that, as the injury was inflicted prior to statehood, the plaintiff was not entitled to the benefit of said provision, although the Constitution was adopted prior to the commencement of the action, for the reason that section I of the Schedule preserved the status of all suits, rights, etc., arising prior to statehood as they existed under the territorial government. We cannot agree wath counsel. The rule is that no person has a vested right in any particular mode of procedure, and if, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute itself provides otherwise. There is nothing in the Constitution or the Schedule indicating a purpose to restrict the power of the state to change modes of procedure as to causes of action arising prior to the admission thereof, except as to actions that were pending at that...