Missouri, O. & G. Ry. Co. v. Overmyre
| Decision Date | 25 July 1916 |
| Docket Number | 4863. |
| Citation | 160 P. 933,58 Okla. 723,1916 OK 760 |
| Parties | MISSOURI, O. & G. RY. CO. v. OVERMYRE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 21, 1916.
Syllabus by the Court.
It being competent to show a general custom among others in the same business with regard to their places for work, or methods commonly used in connection therewith, as bearing on the question of the master's exercise of due care in providing reasonably safe instrumentalities or places with and in which to work, it was not error to refuse to strike from the petition an allegation charging such custom.
Where it is shown that the switch tracks in the yards of a railroad company were located so closely together at a point in said yards, as not to afford sufficient space to enable a hostler's helper, in the employ of said company, to properly discharge his duties, and whereby and while so engaged he was killed, the primary negligence of the company is sufficiently established.
In an action brought by the administrator of the estate of a deceased railroad employé, on account of the death of such employé, brought about by the alleged negligence of the railroad company, it is competent to inquire into the manner of the construction and location of the tracks of the railroad company, though the inquiry involves an engineering question.
It is the duty of a railroad company to so construct its tracks in its yards as will make them reasonably safe for its employés to perform their duties; and a party entering the service has the right to assume that this obligation has been discharged.
An employé is not considered as assuming such risks as are not naturally incident to the occupation, arising out of the failure of the employer to exercise due care with respect to providing a safe place to work and safe appliances for the work, until he becomes aware of the defect and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person, under the circumstances would have observed and appreciated them.
Notice of the danger and appreciation of the risk resulting from the act of the hostler in moving an engine of the larger class such as shown by the evidence, past another engine of the same class at the time standing on the track over the cinder pit, cannot be imputed to the helper solely by reason of the fact that he was aware of the location of the switch tracks at said point, or because he may have been informed generally of the dangers of the service.
Error from Superior Court, Muskogee County; Farrar L. McCain Judge.
Action by A. S. Overmyre, administrator of the estate of Guy E Overmyre, against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.
E. R. Jones and J. C. Wilhoit, both of Muskogee (Arthur Miller, of Kansas City, Mo., of counsel), for plaintiff in error.
B. B. Blakeney and J. H. Maxey, Jr., both of Muskogee, for defendant in error.
On March 19, 1912, Guy E. Overmyre, the deceased, aged 20 years, was in the employ of the Missouri, Oklahoma & Gulf Railway Company, as a hostler's helper, at the shops and in the yards of the defendant company at Muskogee. While in the discharge of his duties on said day, on the tender attached to engine 223, controlled by the hostler, F. M. Scott, and at a time when said engine and tender were being backed into the roundhouse, the said Overmyre was struck and killed by engine 219, at the time standing over the cinder pit on an adjoining track in the yards of said company. In an action to recover damages on account of the alleged negligent killing of said employé, his father, A. S. Overmyre, who was appointed administrator of the estate of his deceased son, recovered judgment in the sum of $5,000, to reverse which the present proceedings in error were instituted.
It is first urged that the court erred in overruling the defendant's motion to strike certain portions of plaintiff's petition charging:
"That successful and thorough engineering such as is in common, ordinary use by railroad companies on the lines of railroad in Oklahoma and elsewhere, requires that such tracks should be constructed allowing a space intervening of not less than seven and one-half feet between rails, so that the engines and cars placed on one track would not peril the safety and lives of operators of engines and cars upon the adjoining track, and that said custom was well known to said defendant and by it recognized in the construction of its other tracks at all other places and points on said line."
The principal objection to the allegation is that the location of the tracks of the company in its yard, was an engineering question to be determined entirely by the railroad company through its management, and was not, therefore, a question to be submitted to a jury; and the further objection, that whether the yards of the defendant were a reasonably safe place in which to work was to be determined by the actual condition thereof, and not by comparing them with the tracks in the yards of other railroad companies. Neither objection, upon the record, is well taken. The first will be discussed later under another head.
It is competent to allege and prove a general custom among others in the same business respecting their places for work, or methods employed, on the question of the master's exercise of due care in providing reasonably safe places in which to work. St. Louis & S. F. R. Co. v. Long, 41 Okl. 177, 137 P. 1156, Ann. Cas. 1915C, 432. Concerning the competency of evidence of usage in such circumstances, it is said in Labatt, Master and Servant (2d Ed.) 939:
"It may be laid down as an undisputed proposition that, where the injury complained of was caused by an instrumentality or method which, at the time of the accident, was in its normal condition, evidence going to show that such an instrumentality was or was not commonly used under similar circumstances by persons in the same line of business as the defendant is always competent for the purpose of proving that he was or was not in the exercise of due care in adopting or retaining that instrumentality as a part of his plant."
The same general rule is announced in 26 Cyc. 1431, 1433, 1434, and is supported by many authorities, including Hennesey v. Bingham, 125 Cal. 627, 58 P. 200; Louisville, B. & I. Co. v. Hart, 122 Ky. 731, 92 S.W. 951; Holland, Adm'r, v. Tennessee, C. I. & R. Co., 91 Ala. 444, 8 So. 524, 12 L. R. A. 232; Anderson v. Illinois Cent. R. Co., 109 Iowa, 524, 80 N.W. 561; Myers v. Hudson Iron Co., 150 Mass. 130, 22 N.E. 631, 15 Am. St. Rep. 176. Of the rule it is said in Wigmore on Evidence, § 461:
"This conduct of others, then, (1) is receivable as some evidence of the nature of the thing in question, because it indicates what is the influence of the thing on the ordinary person, in that situation, but (2) it is not to be taken as fixing the legal standard for the conduct required by law."
It being competent to prove the common usage of other railroads respecting the location of their tracks in railroad yards, under like circumstances, as bearing on the question of the master's exercise of due care in providing reasonably safe places in which to work, it was proper that the issue be tendered by suitable averment in the petition.
The next three assignments of error may be considered together as all involve the consideration of the contention that the location and construction of switch tracks in the railroad yards was an engineering question to be determined by the management of the railway company. It is claimed by the company in this respect:
"Our contention is that this situation did not disclose negligence; that the location of its tracks by the defendant railroad company was an engineering question to be determined by the management of the defendant company, and could not properly be left to a jury for determination; that in the location and construction of the tracks the defendant railroad company had the right to construct them as it saw fit, so as to better handle its business; and that negligence could not properly be predicated on the location of such tracks, and therefore the question of the location of such tracks could not properly be submitted to the jury."
For the purposes of the discussion, we may consider that the principal evidence of negligence lies in proof of the fact that on the roundhouse track adjoining the cinder pit engines of the size and kind used on the night in question would barely clear each other. There are authorities sustaining counsel's contention, the principal one of which is Tuttle v. Detroit, G. H. & M. R. Co., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114. In that case two of the justices dissented. Immunity on account of negligence in the location of railway tracks is denied in other jurisdictions. In Gordon v. Chicago, etc., Ry. Co., 129 Iowa, 747, 106 N.W. 177, counsel made very much the same defense that is now before us. It was there charged that the defendant's road was negligently constructed and maintained, with a sharp depression in the track, and that freight trains in passing over this depression were liable to become uncoupled. It was held that the court would not give its approval to the proposition advanced that in actions such as the one before the court the construction of the road could not be questioned, or that "it will not do to allow juries to inquire into questions of this character." Referring to the opinion of the Supreme Court in the Tuttle Case, it was said:
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