Lawson v. Anderson & Kerr Drilling Co.
| Decision Date | 19 April 1938 |
| Docket Number | 27816. |
| Citation | 84 P.2d 1104,184 Okla. 107,1938 OK 273 |
| Parties | LAWSON v. ANDERSON & KERR DRILLING CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 15, 1938.
Second Petition for Rehearing Denied Dec. 13, 1938.
Syllabus by the Court.
1. An inference of negligence must be based upon something other than mere conjecture or speculation, and it is not sufficient to introduce evidence of a state of facts simply consistent with or indicating a mere possibility, or which suggests with equal force and leaves fully as reasonable an inference of the nonexistence of negligence. The inference of negligence must be the more probable and more reasonable inference to be drawn from the evidence.
2. Evidence which makes it necessary to speculate as to what caused an accident is not sufficient to withstand a demurrer and take the issue of negligence to the jury for determination.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Action by Velma Lee Lawson against the Anderson & Kerr Drilling Company to recover damages for the death of her husband in an explosion and fire while in the employ of the defendant. From a judgment in favor of the defendant, the plaintiff appeals.
Affirmed.
Mike Foster, of Oklahoma City, for plaintiff in error.
Hudson & Hudson, of Tulsa, for defendant in error.
This is an appeal from a judgment of the district court of Oklahoma county sustaining a demurrer to the plaintiff's evidence and rendering judgment thereon, in an action brought by the plaintiff in error, for herself and two minor children, to recover damages for the death of her husband. The parties retain their position as in the trial court, and will be referred to as plaintiff and defendant respectively.
The defendant was servicing an oil well in the Oklahoma City field and employed the deceased, Wm. S. Lawson, and one Baird, who was in charge at the time the accident occurred. The usual equipment was on the lease, and the well was equipped with a master gate to control the flow of oil and gas. In the "dog house" was a small, homemade stove, placed there by the Delton Oil Company, former operator of the well.
The evidence showed that when Baird and Lawson went to work, on the afternoon of September 10, 1935, the master gate was closed. Between 8:30 and 9 p. m. an explosion and fire occurred, resulting in the death of both men. The evidence further showed that immediately after the fire gas was escaping from the well, and the master gate had to be closed. The testimony of one witness was that he stepped into the dog house after the explosion, found the stove burning, and turned it off. The evidence also showed that a ladle used in heating babbitt, and a piece of equipment which required re-babbitting from time to time during servicing of a well, were found in the dog house after the fire.
The plaintiff's theory of the case was that the defendant was guilty of negligence in not having a control head on the well to prevent gas escaping, and that there was negligence in failing to furnish safe instrumentalities with which to work the fire resulting from the gas explosion being caused by the lighted stove some 50 feet from the well, the stove presumably having been lighted in furtherance of these men's employment.
At the close of the plaintiff's evidence, the trial court sustained a demurrer interposed by the defendant, and the plaintiff appeals on the theory the evidence was sufficient to make it more probable the accident occurred in the manner alleged, and, by reason of defendant's negligence, and it was error to sustain defendant's demurrer.
The argument supporting this is presented under four subdivisions, the first of which is, gas is a dangerous instrumentality, and in its use the master is held to a higher degree of care than in the use of an ordinary instrumentality. Inasmuch as this court has declared that such is the proper measure of care to be exercised, there is no issue with this point of plaintiff's argument. See Julian v. Sinclair Oil & Gas Co., 168 Okl. 192, 32 P.2d 31.
The three remaining subdivisions of argument may well be considered together. These are: (1) That after disregarding evidence tending to sustain a defense, if there is any evidence from which inferences favorable to the plaintiff may be drawn, the court cannot withhold from the jury the right to pass on the facts to be deduced...
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