Lone Star Gas Co. v. Parsons

• Decision Date: 28 June 1932
• Docket Number: Case Number: 20587
• Citation: 159 Okla. 52,1932 OK 497,14 P.2d 369
• Parties: LONE STAR GAS CO. v. PARSONS et al.
• Court: Oklahoma Supreme Court

1932 OK 497

14 P.2d 369

159 Okla. 52

LONE STAR GAS CO. v. PARSONS et al.

Case Number: 20587

Supreme Court of Oklahoma

Decided: June 28, 1932

Syllabus

¶0 1. Appeal and Error--Error in Overruling Demurrer to Plaintiff's Evidence Waived by not Standing Upon Same.

Error in overruling the defendant's demurrer to the plaintiff's evidence in chief cannot be urged where the defendant did not stand upon the demurrer but proceeded to introduce evidence in its defense.

2. Same--Negligence -- Variance Between Pleading and Proof Waived by Failure to Request Adjournment.

Variance in proof of line of causation between negligence and damage is waived where defendant did not request an adjournment upon that ground.

3. Explosives--Negligence--Care Required in Safe-Keeping of Dynamite Cartridges to Prevent Their Getting Into Possession of Children.

One in possession of such dangerous instrumentalities as dynamite cartridges is under a duty to exercise a high degree of care in their safe-keeping to avoid harm by their getting into the possession of children into whose possession there is any reasonable likelihood of their getting by reason of any facts which are known or should be known to the possessor.

4. Same--High Degree of Care Required for Protection of Children Though Trespassing.

Where there is a reasonable likelihood of dynamite cartridges getting into the possession of children, due to facts known or which should be known to the possessor, he is under a duty to exercise a high degree in their safe-keeping to avoid such result, notwithstanding the fact that the caps would not be expected to came into the possession of children but for children trespassing upon the premises of the possessor.

5. Negligence--Proximate Cause as Question of Fact or of Law.

Whether the negligence of a defendant is the proximate cause of the damage is usually a question of fact for the jury, but will be decided by the judge as a question of law when under the evidence reasonable men could not differ in their conclusion.

6. Negligence--Doctrine of Imputed Negligence not Recognized.

The doctrine of imputed negligence has been rejected in this jurisdiction, and it is error to instruct a jury not to apply it.

7. Same--Instruction on Effect of intervening Factors in Line of Causation not Required Where Defendant's Negligence Is Clearly Proximate Cause.

If defendant's negligence is clearly an efficient, responsible, or proximate cause, a refusal to instruct the jury upon the effect of intervening factors in the line of causation is not error.

8. Appeal and Error--Reversible Error in Instruction on Items of Damages Recoverable.

An instruction to the jury to include in the damages allowed a sum to be assessed for an item not recoverable is reversible error if it appears that by reason of it the verdict is excessive so that the error is not harmless.

9. Same--Reversal of Cause With Instructions to Grant New Trial Only for Assessment of Damages.

Where the only error in the record is one in the assessment of damages, and it is clear that the jury was well warranted in returning a verdict in favor of the plaintiff, while the power should be carefully exercised, if the court is convinced that in the particular case it is proper to reverse the judgment with instructions to grant the defendant a new trial only for the assessment of damages, it will do so, and such being the situation in this case, the judgment is reversed with instructions to grant a new trial only for the assessment of damages.

Appeal from District Court, Stephens County; M. W. Pugh, Judge.

Action by E. A. Parsons, as father and next friend of Raymond Parsons, against the Lone Star Gas Company. Judgment for plaintiff, and defendant appeals. Reversed with directions to grant a new trial for assessment of damages only.

Owen & Looney, J. Fred Swanson, and Paul N. Lindsey, for plaintiff in error.

S. H. Singleton and Sandlin & Winans, for defendant in error.

SWINDALL, J.

¶1 The plaintiff, who was seven years old at the time of the trial, which was held about two years and a half after the damage alleged, sued to recover for personal injuries sustained from an explosion which he caused by driving a nail into a dynamite cap. The circumstances leading up to the explosion were as follows:

¶2 Sometime before the finding of the caps the defendant had a Mr. McGahey drill a gas well for it upon the location where the caps were found, but the contract required the defendant to dig the cellar. The day before Mr. McGahey came to the premises the cellar had not been dug, and he suggested to one of the defendant's employees that they use dynamite caps in digging it. The next day he saw a small box of dynamite caps on the ground around where the defendant's employees were engaged in digging the cellar. A highway officer who hauled some of the machinery to the location was asked for dynamite caps by some of the defendant's employees, and he gave them about a box of caps which belonged to the county. It appears, however, that none of the caps were used in the work. Mr. McGahey testified that he did not see any dynamite caps later until the day he was cleaning up, getting ready to leave the premises after drilling the well, when he saw a box on the bank of the slush pit and threw them into the pit to dispose of them. The location was the location of the Daisy Reed No. 2 well. Mr. McGahey's testimony was all directed to the location upon which he drilled, but he erred in calling it the Daisy Reed No. 1 location. The defendant's field superintendent testified that other parties had drilled the Daisy Reed No. 1 well back in 1921, several years before the drilling of the Daisy Reed No. 2, that the well drilled by Mr. McGahey was the Daisy Reed No. 2, and several other witnesses testified that it was Mr. McGahey who drilled the Daisy Reed No. 2 well.

¶3 The premises upon which the well was located were agricultural premises, and at the time the caps were found the field in which the well location was situated was under lease to a Mr. Bradshaw, who cultivated the field right up to the edge of the slush pit. The caps were found by his son on the bank of the slush pit one day when Mr. Bradshaw was working in his crop. The boy had brought water to him, and after he found the caps he ran to show his father what he had and the father told the boy that he "thought he had something that he ought not to have," but he also said that he got the impression that what the boy had was something that had been discharged and was not dangerous and that he dismissed the matter from his mind. The caps had much the appearance of a discharged 22-caliber shell, having a metal barrel slightly larger in circumference, but open at the end as the shells are after the bullet has been discharged, and the boys used them as whistles. Mr. Bradshaw testified that he knew what dynamite caps were, and that if he had examined the caps he would have known what they were and that they were dangerous. The boy had them about the house on the floor for several days and then he gave several of them to the plaintiff, who after he had them for a few days hurt himself in the manner above stated. The Bradshaw boy was nine years of age at the time of the trial, about two years and a half after the explosion. The plaintiff's father knew that his boy had the caps, but did not know what they were or that they were dangerous. There was a path near the slush pit and some children would sometimes pass through the field in going to and from school, and the Parsons children used to pass through the field going to their grandmother's and would pass near the slush pit if they used the path, the well location being directly in line. The Bradshaw children helped their father in cultivating the cotton crop in the field where the well location was situated.

¶4 One of the plaintiff's fingers was blown partly off and had to be amputated, and his thumb was split and his legs were burned to some extent. There appears to have been no permanent damage except the loss of the finger.

¶5 The defendant did not keep caps in its storehouse for use in the work done by its employees in the field, and apparently no one connected with the company other than the employees who procured them had any knowledge of them being on the premises.

¶6 The jury returned a verdict for the plaintiff in the sum of $ 2,500.

¶7 The defendant urges a number of assignments of alleged error, among them being that the court erred in admitting incompetent, irrelevant, and immaterial evidence. On that point it urges that the error was in admitting Mr. McGahey's deposition because he testified to occurrences at the Daisy Reed No. 1 well location. His error was explained before the deposition was offered. The assignment is without merit.

(1) The defendant also asserts that there was error in overruling its demurrer to the evidence interposed when the plaintiff rested. The defendant did not stand upon the demurrer, but proceeded to introduce evidence in its defense, so the assignment is untenable. Local Bldg. & Loan Assn. v. Hudson-Houston Lumber Co., 150 Okla. 44, 3 P.2d 156.

(2-4) The defendant also alleges that there was error in overruling its demurrer to the evidence interposed after both parties had finally rested and that there was error in the instructions given and in refusing certain requested instructions. We shall first consider the alleged error in overruling its demurrer.

¶8 The demurrer was urged upon three grounds: (1) That the evidence was insufficient to prove a cause of action; (2) that the evidence was insufficient to prove the allegations of the plaintiff's petition; and (3) that there was a fatal variance between the plaintiff's proof and the allegations of his petition.

¶9 The second and third grounds may be considered together, for it was immaterial that the plaintiff did not prove the allegations of the petition if by the variance he proved sufficient in lieu of...