Jones v. Okla. Planing Mill & Mfg. Co.

• Decision Date: 06 April 1915
• Docket Number: Case Number: 4470
• Citation: 47 Okla. 477,1915 OK 152,147 P. 999
• Parties: JONES v. OKLAHOMA PLANING MILL & MFG. CO.
• Court: Oklahoma Supreme Court

1915 OK 152

147 P. 999

47 Okla. 477

JONES v. OKLAHOMA PLANING MILL & MFG. CO.

Case Number: 4470

Supreme Court of Oklahoma

Decided: April 6, 1915

Syllabus

¶0 1. MASTER AND SERVANT-- Injury to Servant--Safeguarding Machinery--Defense--Assumption of Risk. In an action for damages alleged to have occurred as a direct and proximate result of the failure of a master properly to guard a circular saw, as required by section 3746, Rev. Laws 1910, the defendant cannot take advantage of the defense of assumption of risk.

2. SAME--Safeguarding Machinery-- Question for Jury. In such an action, it was proper to submit to the jury the question as to whether or not a steel spreader was such a guard as was required by the terms of said act.

3. SAME--Instructions. When in such an action the court also submits to the jury, without objection, an instruction embodying the common-law duty of the defendant to furnish reasonably safe tools, appliances, and machinery to its employees, apart from its liability under the statute, it is proper to give to the jury in connection therewith proper instructions covering the defense thereto of assumption of risk.

4. SAME--Defense--Contributory Negligence. In an action for damages for injuries alleged to have resulted from a violation of a statutory duty imposed upon a master, the contributory negligence of the person injured may be urged as a defense thereto, unless such defense is excluded by the statute.

5. APPEAL AND ERROR--New Trial--Discretionary Ruling. A motion for a new trial on account of newly discovered evidence is addressed to the sound discretion of the trial court, and, in the absence of an abuse of such discretion, its action thereon will not be reversed.

6. EVIDENCE--Similar Facts--Report of Factory Inspector. The report of the factory inspector as to another saw of a different style and make, belonging to defendant and located in another part of the defendant's mill, which was offered in evidence, was properly excluded.

Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge.

Action by Maude A. Jones against the Oklahoma Planing Mill & Manufacturing Company, a corporation. Judgment for defendant, and plaintiff brings error. Affirmed.

Jas. S. Twyford, for plaintiff in error.

John Shirk and J. S. Ross, for defendant in error.

HARDY, J.

¶1 Plaintiff in error, plaintiff below, brought suit against defendant in error for the death of her husband, occasioned by the alleged negligence of said defendant; the acts of negligence being specifically alleged as follows:

"That it became and was the lawful duty of the defendant, as a manufacturer, under the statutes of the state of Oklahoma, to furnish to deceased a safe and proper place to work, and, further, to furnish to the deceased, he being in the employ of the defendant, safe machinery with which to work. And plaintiff further says that, in total disregard of its said duty to the deceased, the defendant had failed on and prior to the said 17th day of July, 1911, to furnish deceased a safe place to work and safe machinery with which to perform his work and duty in this: That at said time, and while the deceased was in the employ of the defendant, the said defendant did furnish to him (the deceased) a certain circular saw machine, which was then and there defective and unsafe, and which defendant failed to repair and place in a reasonably safe condition in this, to wit, that the defendant failed to place on said machine what is known as a spreader, which is a steel upright back of the saw knife to steady and otherwise aid timber in sawing, and further failed to place on said saw and machinery any guards to protect a person in the use thereof, and without said spreader or any guards of any kind plaintiff alleges the facts to be that said machine was a dangerous and defective machine."

¶2 To this petition defendant filed answer, which contained a general denial, and affirmatively alleged that at the time of the accident, and at all other times, it exercised the highest degree of caution and care to provide deceased a safe place in which, and safe tools and appliances with which to work; and further pleaded that deceased was guilty of contributory negligence but for which his death would not have occurred, and that he assumed the risks incident to his employment. A reply was filed to this answer.

¶3 The errors relied upon by plaintiff in error are that the court erred in giving instructions numbered 5, 6, 7, 16, 17, 18, 19, 20, 21, and 22, which instructions submitted to the jury the defense of assumption of risk and contributory negligence; and because the court erred in denying the plaintiff a new trial on the showing made as to newly discovered evidence; and exclusion of legal and material evidence offered by plaintiff.

¶4 The petition shows plaintiff's cause of action to be predicated upon the theory that it was the duty of the defendant under the Factory Act to equip the saw at which the injuries occurred with a steel spreader and proper guards, and that for a failure to perform such duty in either respect, resulting in the death of deceased, a recovery might be had. The general denial of defendant raised an issue as to the truth of these allegations, and it then became a question of fact as to whether said saw was properly guarded, and as to whether the steel spreader was such a guard as required by said act. These issues were submitted to the jury by proper instructions, and, had the court gone no further than this, the question of assumption of risk by the deceased would not have entered into this case. The section of the statute upon which plaintiff relies is section 3746, Rev. Laws 1910, which in terms requires that machinery of every description shall be properly guarded, and, where this statute has been violated, and injury results to an employee as the direct and proximate result of the failure of the master properly to guard his machinery, it has already been established by previous decisions of this court that the employee does not assume the risks occasioned by failure of the master to perform this statutory duty. Sans Bois Coal Co. v. Janeway, 22 Okla. 425, 99 P. 153; Curtis & Gartside Co. v. Pribyl, 38 Okla. 511, 134 P. 71, 49 L. R. A. (N S.) 471; Chicago, R. I. & P. R. Co. v. Duran, 38 Okla. 719, 134 P. 876; Great Western Coal & Coke Co. v. Coffman, 43 Okla. 404, 143 P. 30.

¶5 But the court, without objection upon the part of the plaintiff, went further, and instructed the jury, in substance, that if they should further find that it was practicable to equip said saw with such spreader, and the defendant negligently failed to do so, and as a direct and proximate result thereof the deceased was injured while in the exercise of due care upon his part for his safety, then plaintiff was entitled to recover. This instruction merely submitted to the jury the ordinary common-law liability of the defendant for the failure to furnish to the deceased, as its employee, a reasonably safe place in which to work, and reasonably safe tools and appliances or machinery with which to work, and the cause of action embraced in this instruction was not founded upon a violation of any statutory duty. When the court gave this instruction to the jury without objection by the plaintiff, the defendant was then entitled to have submitted as a defense to this cause of action instructions embodying the defense of assumption of risk. Neeley v. S. W. Cotton Seed Oil Co., 13 Okla. 356, 75 P. 537, 64 L. R. A. 145; M., K. & T. R. Co. v. Wilhoit, 160 F. 440, 87 C. C. A. 401; Coalgate Co. v. Hurst, 25 Okla. 588, 107 P. 657.

¶6 It is further contended that the court erred in submitting to the jury the issue of contributory negligence, and it is contended that, by reason of the statute relied upon,...