Mid-Continent Pipe Line Co. v. Price

• Court: Oklahoma Supreme Court
• Writing for the Court: R. H. Wills, J. H. Crocker, J. P. Greve; WELCH
• Citation: Mid-Continent Pipe Line Co. v. Price, 225 P.2d 176, 203 Okla. 626 (Okla. 1950)
• Decision Date: 03 October 1950
• Docket Number: MID-CONTINENT,No. 33724,33724
• Parties: PIPE LINE CO. v. PRICE.

Page 176

225 P.2d 176

203 Okla. 626

MID-CONTINENT PIPE LINE CO. v. PRICE.

No. 33724.

Supreme Court of Oklahoma.

Oct. 3, 1950.

Rehearing Denied Dec. 12, 1950.

Syllabus by the Court.

1. It is the duty of a master who has actual knowledge that a servant is inexperienced in the work for which he is employed to use reasonable care in cautioning and instructing such servant in respect to the dangers he will encounter, and how best to discharge his duties.

2. The master's liability in respect to warning his servant depends upon his knowledge, actual or constructive, of the danger to which his servant is exposed, and such master is guilty of negligence if he knew or ought, in the exercise of ordinary care and diligence, to have known that a warning was necessary.

3. Where competent evidence is introduced on the question of negligence from which reasonable men might draw different conclusions, it is one for the jury, and under like circumstances the question of proximate cause is one for the jury.

4. An instruction in general terms advising the jury of its duty to weigh and consider the testimony of the expert witnesses is not necessarily erroneous for its failure to call attention to the particular matters or questions to which the expert testimony was directed and applicable, where that is obvious to the jury in the course of its hearing of the testimony.

R. H. Wills, J. H. Crocker, J. P. Greve, J. H. Woodard, Oscar E. Swan, Jr., Ben Hatcher, all of Tulsa, for plaintiff in error.

Homer Bishop, Seminole, Clem H. Stephenson, Wewoka, James R. Eagleton, Oklahoma City, for defendant in error.

WELCH, Justice.

F. D. Price, administrator of the estate of John Mitchell (Dick) Justice, deceased, recovered judgment against Mid-Continent Pipe Line Company for the wrongful death of Justus, and the defendant company has appealed.

The deceased had been employed by the defendant as a pipeline laborer. As such and at the direction of the defendant he had worked at rolling pipe on a pipe rack in an area enveloped with smoke or fumes emanating from an adjacent operation where hot coal tar enamel was being applied to pipe. Death came from an involvement of the lungs.

The plaintiff alleged that while carrying on the work assigned by the defendant, the deceased had breathed poisonous smoke or fumes and that said smoke or fumes injured deceased's lungs and caused his death; that defendant was guilty of negligence in failure to warn deceased of the dangers incident to his work and that defendant violated the duty to furnish deceased a reasonably safe place in which to work in failure to provide deceased with reasonably safe equipment as protection against said smoke and fumes.

The defendant contends there was no sufficient evidence to establish a violation by defendant of a duty to warn deceased of dangers incident to his work or to establish a violation by defendant of a duty to furnish deceased a reasonably safe place in which to work, and that it was not established that defendant's negligence was the proximate cause of the death.

The record reflects, that defendant employed a contractor to coat and wrap pipe and place it on defendant's pipe rack. In the coating operation pipe enamel of a specification prescribed by the defendant was heated to a high degree of temperature and flowed over the pipe. At such times acrid fumes and smoke escaped from the vessels containing the hot enamel. At times the fume filled smoke was of such density as to settle and form clouds on and over the surrounding ground. It was shown that workmen on contact with such fumes and smoke ofttimes sustained facial and eye burns and sometimes of a severity as to require medical treatment. There was medical testimony to the effect that one breathing smoke and fumes of such concentration of poison as to burn the face and eyes would likely suffer injury to the lungs. There was medical testimony to the effect that one of the employees of the pipe coating contractor had sustained a lung ailment caused from inhalation of smoke and fumes from the coating operations. Said employee last worked at the coating operation and became ill on a day prior to the afternoon when the deceased was caused to enter an area enveloped with smoke and fumes from the coating operations in the performance of the work assigned by the defendant. It was shown that deceased in the course of his employment with defendant had not theretofore been compelled to come in contact with smoke and fumes from pipe coating operations, and so far as known to defendant was without experience or knowledge concerning such smoke and fumes and its probable effects. The defendant's employees had general instructions from time to time by defendant's safety department to wear goggles whenever their eyes were in danger and to use unguentine for burns, but no special instructions or warnings were given relative to dangers in smoke or fumes from hot pipe line enamel or in breathing smoke and fumes. The defendant in operation of its pipe line and in procuring its pipe to be coated with hot enamel and in sending its employees into an area enveloped with fumes and smoke from said hot enamel was bound to know of the poisonous or dangerous effects of the fumes, and was charged with the knowledge that the deceased had not theretofore in their employe encountered such fumes and the defendant in the exercise of ordinary care was bound to have given warning of such dangers. In Mid-Continent Petroleum Corp. v. Jamison, 197 Okl. 387, 171 P.2d 976, 981, the general rule is stated in quotation from 39 C.J. 491, as follows: 'Regarding the duty to warn employees of the hazards of the work, the master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employees, and is bound to know the normal condition of his premises, and to know of the nature of the constitutents and general characteristics of the substances used in his business, so that he can give directions for the conduct thereof with ordinary safety to his servants performing the work with ordinary care; and particularly is the master chargeable with a knowledge of risks ascertainable only through a knowledge of scientific facts which an uneducated man is not presumed to know; the doctrine that imputes this knowledge to the master is called the 'assumption of skill,' and for the purpose of determining this knowledge the law has a standard which does not vary with the actual capacity of the particular master, and consequently his ignorance is no excuse for a failure to warn; * * *.' See, also, 56 C.J.S., Master and Servant, § 286.

In the first and second paragraphs of the syllabus in the Jamison case it was held:

'It is the duty of a master who has actual knowledge that a servant is inexperienced in the work for which he is employed to use reasonable care in cautioning and instructing such servant in respect to the dangers he will encounter, and how best to discharge his duties.

'The master's liability in respect to warning his servant depends upon his knowledge, actual or constructive, of the danger to which his servant is exposed and such master is guilty of negligence if he knew or ought, in the exercise of ordinary care and diligence, to have known that a warning was necessary.'

The deceased had worked an afternoon at rolling pipe and the following day had face burns and 'coughed and spit up.' In the course of rolling the pipe he was at intermittent periods within five to twelve feet of the hot enamel, and at such times was within an area enveloped with smoke and fumes from the enamel vessels. He worked the following day for the defendant, and with a Sunday intervening, he worked the next three days all in a vicinity away from the pipe coating operations. Following this last day of work for the defendant he became ill at his home and a physician was called to attend him. He was removed to a hospital where, after three days, he died. The attending physician diagnosed his case as pneumonia. The physician testified that deceased had a very marked inflammation of the lungs; that he had a very diffused pneumonia, that it was scattered throughout his lungs; that he couldn't take fluids by the mouth and he would spit up like he was choking; that he couldn't take fluids at all; that fluid was injected into his veins and he choked worse than he did before; that he was getting fluid into the lung tissue; that anything that would irritate the lung tissue could cause fluid there; that he didn't respond to treatment as an ordinary pneumonia patient. The physician testified to a long and varied experience in treatment of pneumonia cases and stated that he had never seen a case of pneumonia exactly like that had by the deceased in that there was no response at all to the treatment that was given; that ordinarily in cases of death from pneumonia the immediate cause is toxemia, a poison resulting from pneumonia, that his patient died too soon to account for toxemia, that he had a water-logged lung; that his patient's 'lungs filled up with fluid to where he couldn't get air in there and he died for that reason;' that in diagnosis pneumonia 'more nearly gives the answer than anything else.' The witness stated that an inhalation of fumes of sufficient concentration of poisons as would burn the lung tissue could cause such condition as exhibited by the deceased and would explain lack of response to treatment. The witness further stated that inhalation of poisons of such violence would be expected to cause immediate illness.

Another physician called as a witness by the plaintiff, on being given a history of the work experience and last illness of the deceased as was shown by the evidence, expressed opinion of the effect and substance that plaintiff's decedent came to his death as a result of inhalation of fumes from the pipe coating operations. Specifically the witness expressed an opinion from the history given that the...