Mo., K. & T. Ry. Co. v. Highfill

• Decision Date: 08 September 1930
• Docket Number: Case Number: 19310
• Court: Oklahoma Supreme Court
• Parties: MISSOURI, K. & T. RY. CO. v. HIGHFILL.

1930 OK 354

293 P. 182

146 Okla. 84

MISSOURI, K. & T. RY. CO. v. HIGHFILL.

Case Number: 19310

Supreme Court of Oklahoma

Decided: September 8, 1930

Syllabus

¶0 1. Master and Servant--Personal Injury Action--Petition not Required to Negative Defense of Assumption of Risk.

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.

2. Same--Pleadings Held to Raise Issue of Assumption of Risk so as to Admit Plaintiff's Evidence in Avoidance of Defense.

In a personal injury action based on the master's negligence, where the petition alleges in detail the nature of a defendant's negligence, and the answer pleads assumption of risk, and reply denies the answer, the issue of assumption of risk is sufficiently raised to admit plaintiff's evidence in avoidance of such defense.

3. Same -- Action Against Master Engaged in Interstate Commerce Governed by Federal Decisions and not by Simple Tool Doctrine.

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.

4. Same--Judgment for Plaintiff Sustained.

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.

Error from District Court, Muskogee County; Enloe V. Vernor, Judge.

Action by R. F. Highfill against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. D. Green, John E. M. Taylor, and Eric Haase, for plaintiff in error.

S. P. Jones, Franklin Jones, Glen Alcorn, and Raymond Buck, for defendant in error.

TEEHEE, C.

¶1 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.

¶2 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 allegation read, to wit:

"The plaintiff shows that, on and prior to the 18th day of August, 1924, he was in the employ of said defendant railway company as a switchman in the yards of said company at Muskogee, Okla., and on or about said date, was engaged with a regular switching crew in the work of making up and breaking up trains in the usual way in which such operations were handled; that the said work was being done by regular switching crew, of which the plaintiff was a member commonly known as a switchman; that the said railway yard of said defendant at Muskogee, Okla., was so situated and so constructed that it was necessary for the switchmen in said yard to use what is commonly known as 'brake clubs,' or sticks, with which the brakes were set and released in the operations in said yard; and the said defendant furnished the said brake clubs or sticks which the switchmen were required to use in the discharge of their duties in said yard.

"The plaintiff shows that, on or about the 18th day of August, 1924, at about six or seven o'clock p. m., while the plaintiff was in the active discharge of his duties as a switchman, that it became proper and necessary for the plaintiff to set and release brakes on a certain car, and to test and otherwise handle the same; and that it was proper and necessary for him to use the said brake club or stick furnished by the said defendant railway company for such use and purpose; and that it was proper and became necessary for him to place the said brake club or stick in the brake wheel and to apply much force thereto for the purpose of ascertaining that the said brake wheel could be turned sufficiently to disengage the dog from the ratchet on the brake staff. And that while the said plaintiff was so using the said brake club or stick in one of the brake wheels on one of the cars on which he was discharging his duties, and for the purpose of releasing the said brake and of ascertaining that the same could be released, that by reason of the said brake club or brake stick being worn, defective, and unsafe, unfit for use and dangerous, that when the plaintiff applied force to it, the same broke, thereby causing said plaintiff to fall, be thrown, and jerked and twisted with great violence around, about and against the said brake wheel and against the said car, which inflicted upon him the severe and permanent injuries hereinafter more fully set forth.

"That the plaintiff shows that he was handling and manipulating the brake on the said car for the purpose of controlling its movement in the ordinary, proper and necessary discharge of his duties as a switchman. * * *

"The plaintiff shows that the said injuries were so inflicted upon him by reason of the negligence of said defendant railway company, its agents, servants, and employees, in that the said railway company, its agents, servants, and employees furnished to the plaintiff a worn, defective, and insufficient brake club or stick, which was so badly worn and defective and so out of repair as to be unsuited for such use, and that the said defendant, its agents, servants, and employees were guilty of negligence which proximately resulted in the injury to him, in failing to furnish him a good and sufficient, sound, and reliable brake club or stick with which to perform and discharge the duties required of him in the said yard."

¶3 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.

¶4 Defendant, without challenge of the sufficiency of the amended petition, answered by denial of each and every material a legation 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.

¶5 By reply plaintiff denied "each and every material allegation" of defendant's answer.

¶6 In detailing the issues to the jury at the opening of the trial, plaintiff's counsel stated, to wit:

"For a short time prior to this accident, the railroad company had failed to provide adequate brake sticks for the use of the switchmen in the yards; that the plaintiff undertook to procure one on the day he was injured for the use in the discharge of his duties, and undertook to procure a suitable and sufficient switch club, but that the few clubs that were on hand and available had become so worn as to become somewhat dangerous for the service for which they were put. That the person in charge of the work requested the plaintiff to continue the work with such brake clubs as they had against the time that they would be provided with new and adequate brake clubs, and promised that they would within a reasonable time provide reasonable adequate brake clubs."

¶7 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.

¶8 Proceeding with his evidence, plaintiff was permitted to testify, over defendant's objections, in affirmance of the points contained in his quoted opening statement. Upon defendant's unsuccessful motion to strike the evidence objected to and demurrer to plaintiff's evidence, and over its objections, plaintiff was given leave to file a trial amendment covering the same, to wit:

"The plaintiff alleges that on the date that he was injured, finding that the defendant had not furnished safe and suitable brake clubs with which to discharge his duties, appealed to his office yard master and requested him to furnish safe and suitable brake club, and that the said yard master told the plaintiff that they had no brake clubs, and requested the plaintiff to continue his work and use such brake club as he could find and procure, and promised the plaintiff that if he would do so that the defendant would in a reasonable time furnish this plaintiff and other employees a more suitable and efficient and safe brake club, and the plaintiff believing said promises and relying thereon continued in his work, receiving his injury as set forth in his amended original petition. Wherefore plaintiff did not assume the risk of being injured and prays for judgment as in his amended original petition."

¶9 Defendant objected to the filing of the trial amendment for the reasons that:

"Plaintiff's petition and amended petition did not raise

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