Mccabe & Steen Constr. Co. v. Wilson

• Court: Oklahoma Supreme Court
• Writing for the Court: GILLETTE, J.
• Citation: Mccabe & Steen Constr. Co. v. Wilson, 17 Okla. 355, 1906 OK 61, 87 P. 320 (Okla. 1906)
• Decision Date: 05 September 1906
• Parties: MCCABE & STEEN CONSTRUCTION CO. v. WILLIAM N. WILSON.

1906 OK 61

87 P. 320

17 Okla. 355

MCCABE & STEEN CONSTRUCTION CO. v. WILLIAM N. WILSON.

Supreme Court of Oklahoma

Decided: September 5, 1906

Syllabus

¶0 1. INSTRUCTIONS TO JURY--Exceptions to. Where several instructions to the jury are requested, and the court refuses to give any of them, a general exception to such refusal will not be sufficient on appeal to raise the correctness of such ruling in this court.

2. PLEADING--Verification of--When necessary. Where a petition alleges that one P., was defendant's superintendent of construction, and one F., was its foreman of a bridge gang, and where the statute provides that: "In all actions allegations of any appointment or authority, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." and the answer is an unverified general denial, coupled with a plea of contributory negligence, such pleading is not sufficient to entitle defendant to prove that P. was not its superintendent, and F. was not its foreman of a bridge gang.

3. MASTER AND SERVANT--Liability of. A railroad company is bound to provide suitable and safe material and structures in the construction of its road and appurtenances, and if from a defective construction thereof an injury happens to one of its servants, the company is liable therefor. The servant, on his part, undertakes the risks of the employment as far as they spring from defects incident to the service, but he does not take the risk of the negligence of the master itself. (Following U. P. Ry. Co. v. O' Brien, 161 U.S. 451.)

STATEMENT OF FACTS.

This is an action wherein the defendant in error, Wm. N. Wilson, seeks to recover damages from the plaintiff in error, McCabe and Steen Construction Company, for injuries that he claims to have received while acting in the capacity of a locomotive fireman, for the said construction company. The defendant in error was a locomotive fireman, and for some months prior to the accident in question was firing on a construction engine. A new line of railroad was being constructed by the Oklahoma City and Western Railroad Company from Oklahoma City to Quanah, Texas. It was on this new line that Fireman Wilson was firing the engine of a construction train. The road had been constructed, and the steel laid to a point south or west of the Canadian river. The Canadian river had been bridged some months prior to the accident, and shortly before the accident a span or two of the bridge had been washed out. On the morning of June 9th, 1902, the construction train, with Tuck Waters as engineer and the defendant in error, William N. Wilson, as fireman, started out of Oklahoma City with a construction train, bearing cars of material and workmen, and headed for its day's labor upon the line of road. When the train arrived at the Canadian river, it stopped, and finding that the river was quite high, the engine was cut off from the rest of the train and the engineer directed to go over the bridge and pick up a loaded car on the other side and bring it back. The engineer moved his engine onto the bridge, cautiously, and when approaching the center of the stream the bridge began to give away, and the engineer reversed his engine and ran back off the bridge. When this construction train arrived at the bridge it found Mr. Fallahay, the foreman in charge of the bridge work, there on the ground with a gang of men, and Mr. Pratt, the general superintendent of construction, was on the train in question, having come out on it, from Oklahoma City. After the engineer had backed his engine off the bridge, Mr. Fallahay and his bridge gang, assisted by Mr. Pratt, the superintendent, proceeded to repair the bridge, and after working upon the same for an hour and a half, constructing what is known as a "false span," they told the engineer and fireman that the bridge had been repaired, and directed them to proceed. The engineer then made specific inquiries both of the superintendent of the bridge gang and of Mr. Pratt, the genral superintendent, as to the sufficiency of the bridge, and informed them that he was not a bridge builder, and would have to rely upon them. They assured him that the bridge was all right, and directed him to go ahead. With this assurance the engineer and fireman took their places in the engine, and cautiously ran onto the bridge. When directly over the main channel of the river and over the "false span" that had been built, the bridge gave away and the engine, with the engineer and fireman, Wilson, went to the bottom of the river. By the exercise of the greatest effort, Fireman Wilson escaped with his life, but his legs were broken in two or three places, and he was otherwise very seriously and permanently injured. For the injuries received on this occasion, the defendant in error, Wm. N. Wilson, brought this action in the court below, charging negligence on the part of the defendant railway company, and in the trial of the cause in the court below he recovered judgment for $ 3,000.00, and to reverse said judgment the plaintiff in error, the construction company, brings the case to this court.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.

A. G. Mosley, and Louis B. Eppstein, for plaintiff in error.

Shartel, Keaton & Wells, and John H. Wright, for defendant in error.

GILLETTE, J.:

¶1 The first assignment of error is the refusal of the court below to give the instructions presented and asked for by the defendant construction company. The record discloses the request for these instructions and then recites:

"Whereupon the court refused to give said instructions, or any of them, to the jury, to which ruling and refusal of the court the defendant then and there duly excepted."

¶2 Our statute prescribed the method of taking exceptions to instructions, and in order to make up a record preserving exceptions to refused instructions, there must be a substantial compliance with the provisions of the statute, and it is claimed, by the defendant in error in this case, that the general exception to the refusal of the instructions, as above set forth, does not amount to a substantial compliance with the statute. Our statute was taken from Kansas, and before we adopted it, the supreme court of Kansas had construed the same, and that construction is presumed to have been adopted here, with the adoption of the Kansas code, and in addition to that the construction placed upon the statute by the supreme court of Kansas meets our hearty endorsement.

"Where a party asks the court to give several separate written instructions to the jury, and the court refuses to give any of them, and a general exception is taken to such refusal: Held: That the exception is not sufficient." Bailey v. Dodge, Kansas 72.

¶3 The exception that was under consideration in the Kansas cases above cited, is so nearly like the one in question here that it is a case exactly in point. It is as follows:

"The above and foregoing are all the instructions asked by the defendant, each and all of which were refused by the court, and to such ruling and refusal said defendant duly excepted."

¶4 The supreme court of Kansas in the above cited case held such a general exception insufficient, and that under it, the error of refusing the instructions requested was not before the court. To the same effect see the case of Fleming v. Latham, 48 Kan. 773, 30 P. 166. Though not exactly in point in this case, we think our own court has fairly indicated its position by its expression as contained in Everett v. Aikens, 8 Okla. 184; Glaser, et al. v. Glaser, et al., 13 Okla. 389, 74 P. 944. We are clearly of the opinion that the general exception to the instructions refused is not sufficient to present the error complained of in refusing them, to this court.

¶5 The next ground of complaint is that the court below erred in refusing to allow the defendant construction company to prove that Pratt was not its superintendent of construction, and that Fallahay was not its foreman of the bridge gang, and that the plaintiff, Wm. N. Wilson, was not employed by the defendant construction company, and that they were the servants in the employ of McCabe & Steen. The rulings complained of arise from the condition of the pleadings. The petition of the plaintiff contains the allegations that said J. Pratt was the general superintendent of construction for defendant, and that said Fallahay was the foreman of the bridge gang for the defendant. It also contains the allegation that the plaintiff was employed by said defendant, through J. Pratt, the general superintendent of construction of defendant. The answer of defendant contains: First, an unverified general denial; Second, an allegation that the injury, if sustained at all by plaintiff, which is denied, was caused and brought about by the carelessness and negligence of a fellow servant of plaintiff, and that defendant is not therefore liable; Third, a special allegation that if the plaintiff was injured at all, which is denied, the said injury so received by him was not due to the negligence or want of care of this defendant, or any of its employes, but was due to one of the risks assumed by the plaintiff in his contract of employment with this defendant, and for which this defendant is in no way liable, and fourth, a plea of contributory negligence. Under the pleadings, as thus made up, the court instructed the jury that the defendant was estopped from claiming that Fallahay, the foreman of the bridge gang; Pratt, the general superintendent of construction, and the plaintiff, were in the employ of the defendant. Concerning the verification of pleadings section 3986 of our statute provides:

"In all actions allegations of the execution of written instruments and the endorsements thereon, * * * or of any appointment or authority, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or

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