Muskogee Vitrified Brick Co. v. Napier

• Decision Date: 17 September 1912
• Docket Number: Case Number: 1974
• Citation: 126 P. 792,1912 OK 602,34 Okla. 618
• Parties: MUSKOGEE VITRIFIED BRICK CO. v. NAPIER.
• Court: Oklahoma Supreme Court

1912 OK 602

126 P. 792

34 Okla. 618

MUSKOGEE VITRIFIED BRICK CO. v. NAPIER.

Case Number: 1974

Supreme Court of Oklahoma

Decided: September 17, 1912

Syllabus

¶0 1. PLEADING--Reply--Necessity. A reply is unnecessary where it would merely repeat, in effect, the allegations of the petition.

2. NEGLIGENCE--Actions--Question for Jury. On the question of primary negligence of defendant in a personal injury suit, where the evidence is such that reasonable men may fairly differ as to whether negligence is shown, the question should be submitted to the jury.

3. MASTER AND SERVANT--Injuries to Servant--Evidence--Sufficiency. Where an employee operating a rock crusher was oiling certain cogwheels while the machinery was running, in obedience to the commands of the master, the cogwheels being left without guard or shield, it being practicable and feasible to have placed guards or shields over them, and the belt on the large drivewheel near by came in contact with timbers above it, and splinters, caused by such contact, struck plaintiff in the face, causing him to dodge to protect himself, and in doing so his hand was caught and crushed in the unguarded cogs, held, that the evidence justified the finding by the jury that, under the circumstances, it was negligence to leave the cogs unguarded, and that such negligence was the proximate cause of the injury.

4. STATES--Injuries to Servant--Question for Jury--Contributory Negligence--Assumption of Risk. In a personal injury suit for damages, commenced since statehood, where the injury occurred prior thereto, section 1 of the Schedule to the Constitution does not exempt the action from the operation of section 6 of article 23 of the Constitution, which provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."

N. A. Gibson and H. C. Thurman, for plaintiff in error.

Benj. Martin, Jr., and Anselon Buchanan, for defendant in error.

BREWER, C.

¶1 This is a suit for personal injuries received prior to statehood; the suit being brought since the erection of the state government. A trial in the district court on the day of , 1909, resulted in a verdict for the plaintiff below in the sum of $ 2,250. The errors urged in plaintiff in error's brief, who will hereafter be referred to as defendant, may be grouped into the following: (1) Refusal to instruct a verdict for defendant at the close of plaintiff's evidence, and again at the conclusion of all the evidence. (2) The giving of instruction No. 9. (3) Refusal to give certain requested instructions. (4) Refusing to grant a new trial. The petition, briefly stated, alleges for cause of action negligence upon the part of defendant in directing and requiring plaintiff to oil certain cogwheels while the machinery was running, and in failing to have a guard or protection over such wheels; also in overloading a floor with shale and rock, so as to cause a joist above the driving wheel to sag, so that the heavy belt working on the drivewheel came in contact with the joist, causing splinters and pieces of the joist to be torn off and thrown against plaintiff's face, from which he dodged and caught his hand in the unguarded cogwheels while the machinery was running; and that he was guilty of no negligence upon his part. The defendant denied each allegation of negligence specifically; denied that it had ordered plaintiff to oil the cogs while in motion, and that if he was so injured it was because of his own negligence, and because he disobeyed orders of defendant in oiling the cogs while in motion. The evidence shows: That plaintiff had been working at defendant's brick plant about five months. That his duties were to stand on a little platform in front of heavy iron wheels which ran over and pulverized shale and rock. These wheels, called "mullers," were run by a large cogwheel, which worked in some small cogs on a pinion. These cogwheels were located four or five feet high and in front of plaintiff. It was plaintiff's duty to feed the shale down a wooden trough into the mullers, and to oil the cogwheels. For several months the oiling was done before starting the machinery, and when so done there was no possible danger in the work. A short time before the injury, the small cogwheel on the pinion was replaced with a new one. These new cogs working into worn ones did not work smoothly, and this required oiling several times between starting and stopping times. The cogwheels were without guards or covering. There was evidence that after the new cogs were put on, plaintiff always stopped the machinery when it needed oiling, until a few days before the injury, when the manager came to him and commanded him to thenceforth oil the cogs without stopping the machinery; and that the manager demonstrated how it could be done by starting up the machinery and reaching over and oiling it while in motion, telling plaintiff to do it in a similar way in the future, or he would get some one who would do so. The plaintiff followed this command until he was hurt by getting his hand into the cogs. This was the only work ever done by plaintiff with or around machinery. The giving of this command was denied by defendant in the pleading and by the manager under oath. The plaintiff was corroborated in his testimony that it was given by another witness. There was some evidence that large quantities of shale were stored in the loft above where the belt worked, and that a short time before the injury the belt had been torn a little and repaired by the manager and plaintiff. Plaintiff said he thought the shale above had caused the joist to sag, so that the belt came in contact with it. This was excluded, because it was a conclusion. When injured, the machinery was in motion. Plaintiff, standing at his post of duty on the platform, saw the cogwheels emitting sparks of fire. He caught the lever with one hand to steady himself, took a small paddle with grease on it in the other, leaned his body forward, and reached out his arm's length, and was oiling the cogs. While doing so in this position, the heavy belt above and just in front of him, and running at great speed, struck a joist under which it ran and tore pieces of splinters off, which struck plaintiff on the side of his face. Fearing...