Lowden v. Bowen

• Citation: 1947 OK 192,183 P.2d 980,199 Okla. 180
• Decision Date: 17 June 1947
• Docket Number: Case Number: 32116
• Parties: LOWDEN v. BOWEN
• Court: Supreme Court of Oklahoma

1947 OK 192

183 P.2d 980

199 Okla. 180

LOWDEN v. BOWEN

Case Number: 32116

Supreme Court of Oklahoma

Decided: June 17, 1947

Syllabus

¶0 1. MASTER AND SERVANT - Liability under Federal Employers' Liability Act arises from negligence as defined by common law.

Liability under the Federal Employers' Liability Act (45 U.S.C.A. 51) arises from negligence as that term was defined by the common law. Under the common law an employer was not a guarantor of the safety of the place of work, or of the machinery and appliances furnished. The extent of the employer's duty to employees was to exercise ordinary care and prudence in furnishing a reasonably safe place in which the work was to be performed, and reasonably safe tools and appliances to be used in performing it.

2. SAME - Personal injury action by section hand against railroad - Failure of evidence to show negligence of defendant as proximate cause of injury.

Record examined, and held, that the evidence fails to establish any negligence on the part of defendants, which was the proximate cause of plaintiff's injury, and that defendant's motion for directed verdict should have been sustained.

Appeal from District Court, Latimer County; William S. Hall, Judge.

Action by Carvin T. Bowen against Frank O. Lowden and Joseph B. Fleming, Trustees of the Estate of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendants appeal. Reversed with directions to dismiss.

W.R. Bleakmore and James E. Grigsby, both of Oklahoma City for plaintiffs in error.

A.L. Morrison, of El Reno, and Bob Perdue, of Wilburton, for defendant in error.

OSBORN, J.

¶1 This action was brought by plaintiff, Carvin T. Bowen, against defendants Frank O. Lowden and Joseph B. Fleming, Trustees of the Chicago, Rock Island & Pacific Railway Company, under the provisions of the Federal Employers' Liability Act, to recover damages for personal injuries sustained by plaintiff while employed as a section hand by defendants. At the close of all the evidence defendants moved for a directed verdict, which motion was denied, and the cause submitted to a jury. Verdict and judgment was for plaintiff. Defendants appeal.

¶2 The facts are undisputed. From the evidence it appears the plaintiff was employed by defendants in the latter part of 1942 as a section laborer. He was transferred from Wilburton, where he was first employed, to Arkansas in February of 1943, and worked with a gang there until May 15, 1943, at which time he sustained an injury to his left foot. After he commenced working for defendants he had considerable foot trouble. On April 9, 1943, he went from Arkansas to Oklahoma City to have his foot treated, and remained in the hospital there until April 19th, when he returned to Wilburton, and remained off work until May 1st, at which time he went back to work in Arkansas. On May 15th, while working on defendants' track, he was pushing a push car upon which was loaded a 55-gallon drum of creosote and some hand tools used by the gang with which he was working. While pushing this car up the railroad track, which at that point was slightly upgrade and on about a three per cent curve, his left foot slipped on a tie and went into a slight hole or depression in the roadbed, spraining his instep. That evening he complained of the injury to his foreman, who took him to a physician. Thereafter he did no further work, and his physician testified that, in his judgment, the injury was such that plaintiff would be permanently incapacitated from performing manual labor. At the time of the injury plaintiff was 40 years of age.

¶3 Defendants contend (1) that there is no proof of primary negligence on the part of the defendants; (2) that the injury sustained by plaintiff was not proximately caused by any negligence of the defendants; and (3) that the evidence is insufficient as a matter of law to support a verdict under the Federal Employers' Liability Act.

¶4 Plaintiff contends that the evidence sufficiently establishes negligence, and that such negligence was the proximate cause of the injury.

¶5 Since we have reached the conclusion that no negligence on the part of defendants is shown, it will be necessary to discuss only the sufficiency or insufficiency of the evidence to establish such negligence.

¶6 Plaintiff contended in the trial court, and here contends, that defendants were negligent in two respects: First, in requiring plaintiff to operate a defective push car, and, second, in failing to provide him with sufficient assistance or additional help to push the car with the load it carried up the particular stretch of track upon which he was pushing it when injured.

¶7 From the evidence it appears that the push cap was a flat car weighing 600 pounds, with four wheels, two of which were solid on the axles and would not turn independently of the axle, and two of which were loose on the axles and would turn independently of the axle. It was equipped with bearings or bushings on the loose wheels which were considerably worn. This condition, according to the testimony, did not impair the usefulness of the push car, but only made it harder to push. Plaintiff testified that at the time he was injured the weight of the push car with the hand tools and drum of creosote with which it was loaded was some 1,500 pounds. The foreman of the gang testified that, in his judgment, it would weigh anywhere from 1,500 to 1,700 pounds. From the evidence it appears that this push car and another push car, which plaintiff testified was easy to handle, were both being used by the gang and had been so used for some time, although plaintiff testified that the men whenever possible used the other car. At the time of the accident plaintiff was pushing the car behind the gang, picking up and loading on the car hand tools which had been left behind by the gang as it proceeded up the track in the performance of its work.

¶8 Plaintiff testified that shortly before the accident the foreman had furnished him with a fuser or flare and told him to keep a lookout for approaching trains; that while pushing the car up the grade with all his strength he turned and looked back to see if a train was visible, and that when he did so his foot slipped on a tie and went into a hole in the road-bed, which accident produced the injury complained of. He testified further that after the accident he continued to push the car and gather the tools from about 4 o'clock, when the accident occurred, until about 5 o'clock, when his work was completed. He further testified that this was the first time he had ever pushed this particular car, although he had pushed the other one at various times, and, that at times he had heard the men talk about the worn bushings or bearings in this particular car. He testified that he did not ask for any help to push the car on this particular occasion, for the reason that he had previously asked for help and the foreman had refused to give him any. He did not specify any of the conditions under which he had previously asked for help, or whether, on those occasions, the car had been more heavily loaded than it was when he was injured, or just why help was refused. Both he and other men employed on the gang testified that it was customary, when the push car was heavily loaded, to assign more than one man to push it. Some of the other men employed on the gang testified that the worn bearings in this particular push car made it harder to push than the other one, but that it was used by the gang, and that pushing the car, unless it was very heavily loaded, was considered a one-man job.

¶9 Under the Federal Employers' Liability Act, 45 U.S.C.A. 51, a common carrier is liable for the injury or death of an employee "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, boats, wharves, or other equipment." And "negligence", as used in the act, is the violation by the employer of his duty to use reasonable care in furnishing his employees...