Missouri-Kansas-Texas R. Co. v. Highfill
Decision Date | 09 September 1930 |
Docket Number | 19310. |
Parties | MISSOURI-KANSAS-TEXAS R. CO. v. HIGHFILL. |
Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 25, 1930.
Syllabus by the Court.
Servant in personal injury action, based on master's negligence need not negative defense of assumption of risk in petition.
In a personal injury action based on the master's negligence a plaintiff is not required to negative the defense of assumption of risk in his petition.
Issue of assumption of risk held sufficiently raised under petition alleging nature of master's negligence, answer pleading assumption of risk, and reply denying answer.
In a personal injury action based on the master's negligence where the petition alleges in detail the nature of defendant's negligence, and the answer pleads assumption of risk, and the reply denies the answer, the issue of assumption of risk is sufficiently raised to admit plaintiff's evidence in avoidance of such defense.
Action against railroad engaged in interstate commerce at time of injury to switchman from using simple tool or appliance, which was defective, is governed by common law as construed by federal courts; under common law as construed by federal courts, switchman engaged in interstate commerce does not assume risk attributable to railroad's failure to furnish nondefective appliance, where defect was called to master's attention, who directed use pending repairs.
A personal injury action by a servant against his master who is engaged in interstate commerce at the time of the injury arising out of employment requiring the use of a simple tool or appliance which was defective is governed by the common law as construed by the federal courts, and not by what is commonly known as the simple tool doctrine. In such case a servant does not assume the risk attributable to his master's failure to furnish a nondefective appliance where the defect has been called to the master's attention and there has been a promise of reparation and direction to use such defective appliance pending reparation.
Evidence, in action against railroad for injury to switchman from use of defective "brake club" while engaged in interstate commerce, held to support recovery under common law, as construed by federal courts.
Record examined and held that the evidence is sufficient to sustain the judgment under the rule as set out in paragraph 3 of the syllabus.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Muskogee County; Enloe V. Vernor, Judge.
Action by R. F. Highfill against the Missouri-Kansas-Texas Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
M. D. Green, John E. M. Taylor, and Eric Haase, all of Muskogee, for plaintiff in error.
S. P. Jones, and Franklin Jones, both of Marshall, Tex., Glen Alcorn, of Tulsa, and Raymond Buck, of Fort Worth, Tex., for defendant in error.
In this cause the parties occupied the relation of master and servant. The servant, R. T. Highfill, defendant in error and plaintiff below, recovered a judgment against the master, the Missouri-Kansas-Texas Railway Company, plaintiff in error and defendant below, in a personal injury action brought and tried on the theory that the federal doctrine of the common law of master and servant controlled the merits of the case for that the defendant was engaged in interstate commerce at the time of plaintiff's injury.
Upon defendant's motion to make his petition more definite and certain in particular details, plaintiff filed an amended petition of which the principal charging allegations read, to wit:
Following other appropriate allegations as to his earning capacity at the time of injury and his life expectancy, he alleged damages in the sum of $60,000, for which in said amount he prayed judgment.
Defendant, without challenge of the sufficiency of the amended petition, answered by denial of each and every material allegation thereof, and further pleaded that, if plaintiff was injured in the manner as alleged, he "was himself guilty of carelessness and negligence which contributed to his said injuries," and "that said injuries were the result of the risks of his employment, which he assumed," and thereupon prayed that it be adjudged to go hence without day with its costs in the cause.
By reply plaintiff denied "each and every material allegation" of defendant's answer.
In detailing the issues to the jury at the opening of the trial, plaintiff's counsel stated, to wit: Over defendant's objection thereto, on the ground that the points thereof, to wit, "that the plaintiff had been requested to continue the use of certain clubs and had been promised another one," were not within the issues framed by the pleadings, the statement was by the court permitted to stand for later consideration.
Proceeding with his evidence, plaintif...
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