Lusk v. Bandy

• Decision Date: 29 April 1919
• Docket Number: 9127.
• Citation: 184 P. 144,76 Okla. 108,1919 OK 132
• Parties: LUSK et al. v. BANDY.
• Court: Oklahoma Supreme Court

184 P. 144

76 Okla. 108, 1919 OK 132

LUSK et al. v. BANDY.

No. 9127.

Supreme Court of Oklahoma

April 29, 1919

Rehearing Denied Oct. 7, 1919.

Syllabus by the Court.

A case which by allegation and proof is brought within Employers' Liability Act April 22, 1908, c. 149, 35 Stat 65 (U. S. Comp. St. §§ 8657-8665), is controlled by that act although its provisions may not have been referred to in express terms in the pleadings.

Where a common carrier by railroad while engaged in interstate commerce maintains at one of its division points a roundhouse and turntable, where its engines being used in such commerce are stored in such roundhouse, and the boilers of such engines are washed therein, or on tracks adjacent thereto and such engines are turned on such turntable, held:

(a) That the roundhouse and tracks adjacent thereto and the turntable so used are instrumentalities used by the railroad in interstate commerce.

(b) That an employé of the railroad, whose duties were to wash boilers of the engines of the railroad so used was, while in the discharge of his duties and while in and around such roundhouse and on the premises of the railroad company adjacent thereto and in going to and from his work when ordered by the foreman of such roundhouse, also engaged in interstate commerce within the provisions of the Employers' Liability Act of Congress of April 22, 1908.

(c) Where suit is brought by the personal representatives of such employé against the receivers of the railroad company and the petition of the plaintiff, by proper allegations and averments, alleges the death of the employé, and alleges that his death was proximately caused by the failure of the defendant to keep its turntable pit lighted and the evidence was conflicting, though there was evidence reasonably tending to sustain the allegations of the plaintiff, the trial court properly overruled the demurrer of the defendant to the evidence of the plaintiff and the defendant's request for a peremptory instruction and properly submitted the questions of assumed risk by and the contributory negligence of the deceased to the jury, as well as the question of whether or not the deceased was engaged in interstate commerce at the time of the accident resulting in his death.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

Under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), the law of assumption of risk is, as that of the common law as it existed prior to the passage of said act, except where the common carrier violated some statute enacted for the safety of employés.

On the issue of assumption of risk by a servant who has sustained injuries, where the evidence is harmonious and consistent and the circumstances are such that all reasonable men must reach the same conclusion, the question whether the plaintiff assumed the risk is one of law for the determination of the court; but where the facts are controverted, or are such that different inferences may be drawn therefrom, the question as to the assumption of the risk should be submitted to the jury under proper instructions from the court.

Under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), the servant assumes all the risks of his employment which are known to him, or which could have been known by the exercise of ordinary care of a person of reasonable prudence and diligence in like circumstances. Risks not naturally incident to the occupation, but which arise from the negligence of the master, are not assumed by the servant until he becomes aware of such negligence and of the risks arising therefrom, unless the negligence or risk are so apparent and obvious that an ordinary and careful person would observe the one and appreciate the other.

Evidence examined, and held, that under the facts of this case the question of assumption of risk was properly submitted to the jury.

In a civil action triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.

Requested instructions of the defendant, which were refused by the trial court, examined, and held, that in each instance the instructions either failed to state the question of law involved correctly, or that the same was properly submitted to the jury by the trial court, and that therefore the refusal of the court to give such requested instructions was not prejudicial error.

Additional Syllabus by Editorial Staff.

In an action under the federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665), for negligent death, the court may receive a verdict apportioning the damages among the beneficiaries.

Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by Francis Bandy, née Francis Jones, administratrix of the estate of Clay Jones, deceased, against James W. Lusk and others, received of the St. Louis & San Francisco Railroad Company. Verdict and judgment for plaintiff, motion for new trial overruled, and defendants bring error. Affirmed.

W. F. Evans, of St. Louis, Mo., R. A. Kleinschmidt, of Oklahoma City, and Jones & Foster, of Muskogee, for plaintiffs in error.

Robt. Wimbish and W. C. Duncan, both of Ada, for defendant in error.

JOHNSON J.

This action was commenced on the 23d day of December, 1915, in the district court of Pontotoc county, by plaintiff, under the name of Francis Jones, as administratrix of the estate of Clay Jones, deceased, to recover of the defendants damages for the alleged wrongful death of the said Clay Jones. The action was instituted under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The petition, exclusive of caption and formal allegations, is as follows:

"That the defendants are the duly appointed, qualified and acting receivers of the St. Louis & San Francisco Railroad Company, a corporation, and that said receivership is pending in the District Court of the United States for the Eastern Division of the Eastern District Court of the State of Missouri, and as such receivers the defendants are in charge of the property of said railroad company, said property consisting, among other things, of railroads, cars, stations, shops, roundhouses, turntables, engines, etc. That said receivers are operating said railroad, a line of which passes through the state of Oklahoma in the county of Pontotoc, and a line of which extends from Denison in the state of Texas, to the city of Sapulpa, in the state of Oklahoma, and from the city of Sapulpa in the state of Oklahoma, to the city of Monett in the state of Missouri, and that there are agents of the defendants in Pontotoc county upon which service of summons may be had.

Second. Plaintiff further alleges that heretofore, to wit, on the 3d day of November, 1915, the plaintiff's decedent, Clay Jones, was in the employ of the defendants receivers in the capacity of a workman and boiler washer in the town of Francis, state of Oklahoma; that on said day and date, and for some time prior thereto, the said decedent was engaged as a boiler washer in washing boilers of engines belonging to the defendants receivers, which said engines were used by the defendants in both interstate and intrastate commerce and traffic from the town of Francis, state of Oklahoma, to the town of Denison, state of Texas, and points within the state of Missouri along defendants' line of railroad, said points being to this plaintiff unknown.

Third. Plaintiff further alleges that while said decedent was so employed as hereinbefore set out in paragraph 2 of this petition, and for a long time prior thereto, the defendants receivers owned and operated in their yards at Francis, Okl., a turntable; that said turntable was used and operated by the defendants for the purpose of turning defendants' engines, which said engines were used by the defendants receivers in transporting freight and passenger cars from the town of Denison, to the town of Francis, and from the town of Francis to the town of Denison, and to other points both north and south of the town of Francis, which points are to this plaintiff unknown.

Fourth. Plaintiff further alleges that it was the duty of her decedent, Clay Jones, to work ___ hours a day for the defendants, and that his day's work terminated at 7 o'clock in the evening, and under the rules and regulations prescribed by the defendants, their agents, servants, and employés, who had supervision of said decedent, it was the duty of said decedent to report to one of the defendants' agents, servants, and employés and to 'register off' for the day's work; that said decedent had been accustomed to making such report and 'register off' on each and every day that he worked for a long time prior to the 3d day of November, 1915.

Fifth. Plaintiff further alleges that on the said 3d day of November, 1915, at about the hour of 7 o'clock, said decedent had, during all said 3d day of November, 1915, been at work in the roundhouse or engine house washing boilers of engines belonging to the defendants; said engines having on said 3d day of November, 1915, and a few days prior thereto, been used by defendants in transporting its trains and cars from Francis, Okl., to Denison, Tex., and from Denison, Tex., to Francis, Okl., and it was contemplated by defendants, their agents, servants, and employés to again use said engines for the purpose of transporting and pulling its trains from Francis, Okl., to Denison, Tex.,

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