National Valve & Mfg. Co. v. Wright

• Decision Date: 26 December 1951
• Docket Number: No. 34340,34340
• Parties: NATIONAL VALVE & MFG. CO. et al. v. WRIGHT.
• Court: Oklahoma Supreme Court

Page 769

240 P.2d 769

205 Okla. 565

NATIONAL VALVE & MFG. CO. et al. v. WRIGHT.

No. 34340.

Supreme Court of Oklahoma.

Dec. 26, 1951.

Syllabus by the Court.

1. The fact that the work being done at the time of the death of an employee was construction work and the danger was of a transitory nature does not relieve the employer of his duty to furnish a safe place to work, but he must use ordinary care to make the place of work as safe as it can reasonably be made the conditions under which the work is being performed.

2. Although a servant assumes the known and obvious increased hazards of a work, which, by reason of the character of the work, becomes more dangerous as the work progresses, a master in such case is not absolved from any duty to furnish a safe place to work, but must use ordinary care to make the place where his servant works as safe as it can be made under the conditions of the work to be performed.

3. Concurrent causes are causes acting contemporaneously and which together cause the injury, which injury would not have resulted in the absence of either.

4. In an action for wrongful death the question of whether or not defendant's negligence is the proximate cause of the death of deceased should be left to the jury where the evidence is conflicting, or when men of ordinary intelligence might differ as to the effect of the evidence produced.

5. Record examined and held: that the trial court did not err in permitting the introduction of a photograph of the scene of the accident, taken after the accident and shortly before the trial, held further that it did not err in admitting the testimony of a former employer of the deceased to the effect that he had offered deceased, and deceased had accepted, a position at a better salary than deceased was making at the time of his death: that the argument of the attorney for plaintiff to the jury, while to some extent improper, is not shown to have materially prejudiced the defendant: that the verdict is not excessive.

Pierce, Rucker, Mock, Tabor & Duncan, of Tulsa, for plaintiff in error, National Valve & Mfg. Co.

Hudson, Hudson & Wheaton, of Tulsa, for plaintiff in error, W. R. Grimshaw Co.

Leo J. Williams, Roy F. Ford, Charles D. Crandall and Dick Hansen, all of Oklahoma City, for defendant in error.

BINGAMAN, Justice.

This action was brought by Hasbrouck S. Wright, administrator of the estate of L. L. (Roy) Conner, deceased, against the defendants, The National Valve and Manufacturing Company, a corporation, and W. R. Grimshaw Company, a copartnership, and Public Service Company of Oklahoma, a corporation, to recover damages for the wrongful death of Conner. In National Valve & Mfg. Co. v. Wright, Okl. Sup., 240 P.2d 766, we upheld the judgment or order of the District Court of Tulsa County, vacating and setting aside a previous judgment rendered upon a settlement or compromise made by the widow of Conner and the attorneys for plaintiff, without the knowledge and consent of the administrator and against his wishes. After this judgment was vacated by the District Court the case was tried on the merits. At the conclusion of plaintiff's evidence all three defendants separately demurred thereto. The trial court sustained the demurrer of Public Service Company of Oklahoma, but overruled the demurrers of The National Valve and Manufacturing Company and W. R. Grimshaw Company. The last named defendants stood on their demurrers to the evidence, refused to produce any evidence in their behalf and waived argument to the jury. The jury returned a verdict against both defendants in the sum of $53,000.00. Thereafter the trial court required the plaintiff to file a remittitur of $10,000.00, and upon the filing thereof overruled the motions of the Valve Company and the Grimshaw Company for new trial. Both defendants appeal.

There is no substantial dispute as to the essential facts. At the time of the unfortunate accident in which Conner lost his life, on June 12th, 1947, Public Service Company was engaged in building an addition to its plant at Tulsa. W. R. Grimshaw Company was the general contractor employed to erect the building, and the Valve Company was one of several independent contractors also employed by Public Service Company to install various kinds of equipment in the building. Conner was employed by the Valve Company, and at the time of the accident was engaged in installing a piece of equipment on the fifth floor of the building. The place where his duties required him to work was a five foot wide concrete ledge or platform which overlooked a paved area some fifty feet below. At one time a temporary guard rail, made of two by four inch lumber, had been installed at the outer edge of this ledge, but prior to the time Conner started working on the ledge, the guard rail had been removed, by whom or just when this was done not being shown. However, from the evidence it appears that this removal took place at least three days before Conner was killed, since employees of the Valve Company, including the superintendent in charge of its operations there, testified that they had then gone up to the ledge and that it had no guard rail around it. At the time he was killed, Conner was standing about a foot from the outer edge of the ledge or platform, facing another employee, with whom he was consulting about the work, when a board from a scaffold above him, which was being dismantled by employees of the Grimshaw Company, fell upon him, striking him on the head or shoulders, and knocked him from the ledge so that he fell to the paved area some 50 feet below. Whether his death was caused by the blow of the heavy timber striking him or by his falling upon the concrete floor of the area below is not definitely shown. While the employees of the Valve Company, who were on the ledge, testified that the heavy piece of two by twelve inch lumber dropped from above struck him on the head, the employees of the Grimshaw Company, who were above him and in a better position to see, testified that the board struck him on the shoulder. In any event he was almost instantly killed as a result of the accident.

Plaintiff charged in his petition that the Valve Company was negligent in failing to provide the deceased with a safe place to work, in that it did not place a guard rail around the ledge, and that the Grimshaw Company was negligent in that its employees dropped the timber or plank upon Conner, without warning to him, and that the said acts of negligence concurred to cause and did cause Conner's death. In his petition he also, in a second count, asked for punitive damages, but the demurrer of the defendants to this count was sustained and the matter of punitive damages passed out of the case.

In this court the Valve Company contends that the evidence was not sufficient to show negligence on its part, for the reason that the work was being conducted on the premises of a third party, which it did not own and over which it had no control, and that therefore it was not required to furnish a safe place to work, citing 35 Am.Jur. 'Master and Servant', Sec. 174; Traders Compress Co. v. Steigler, 197 Okl. 204, 169 P.2d 205, and numerous cases from other jurisdictions, holding that in such case the duty of the employer to furnish a safe place to work is conditioned upon the fact that he has direct control and supervision over the work and the premises. It further urges that under the case of Kansas City Bridge Co. v. Gravitt, 188 Okl. 30, 105 P.2d 767, and of Cosden Pipe Line Co. v. Berry, 87 Okl. 237, 210 P. 141, the evidence must show that it knew of the dangerous condition and could have obviated the same by the exercise of ordinary care. It also asserts that the deceased assumed the risk arising from the unguarded condition of the ledge.

The evidence in this case discloses that at the time the work was being done by the employees of the Valve Company, on the concrete ledge from which Conner fell, the ledge was not occupied by the employees of any other contractor, but that it was solely in possession of and under the control of the Valve Company for the purpose of doing the work it was employed to do. The evidence further shows that the lack of a guard rail around the ledge was known to the operating superintendent in charge of the work for the Valve Company at least three days prior to the time the accident occurred, and that with his knowledge and apparently at his direction employees of the company had been working upon the ledge at various times during the two or three days preceding Conner's death. The superintendent for the Grimshaw Company testified that the job was a union job, and that his company employed the only carpenters working on the project, and that if requested he would have installed a guard rail for the Valve Company at any time. The danger of permitting a man to work upon this ledge in such condition should have been, we think, apparent to any reasonable, man, and we think further that a reasonably careful employer in such case would have installed a guard rail, or taken some measures to protect its employees from the possibility of a fall from the ledge. Certainly it might reasonably be anticipated by such employer that a workman might...