Neeley v. Sw. Cotton Seed Oil Co.
| Decision Date | 10 September 1903 |
| Citation | 1903 OK 88,75 P. 537,13 Okla. 356 |
| Parties | NATHAN NEELEY v. SOUTHWESTERN COTTON SEED OIL COMPANY. |
| Court | Oklahoma Supreme Court |
¶0 1. VERDICT--May be Ordered, When. The court may withdraw a case from the jury and direct a verdict for the defendant where the evidence is undisputed, or is of such conclusive character that the court in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.
2. NEGLIGENCE--Not Presumed, When. In case of an accident to an employee, the fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the accident was the result of the negligence of the employer.
3. EMPLOYER--Duty of--Assuming the Risk. It is the duty of the employer to furnish the employee a reasonably safe place to work, and reasonably safe appliances with which to work, reasonably safe material to work with and reasonably competent fellow servants. He is required to furnish appliances free from defects discoverable by the exercise of ordinary care, and the employee has the right to rely upon this duty having been performed, and while in entering the employment he assumes the ordinary risks incident to the business, he does not assume the risk arising from the neglect of the employer to perform the positive duty owing to the employee with respect to appliances furnished. The exception to this rule is that where the employee receives for use a defective appliance, and with knowledge of the defect and its dangerous character, continues to use it without notice to his employer, he cannot recover for an injury resulting from such defective appliance thus voluntarily used.
4. ASSUMPTION OF THE RISK OF EMPLOYMENT. A servant entering into an employment which is hazardous, assumes the usual risks incident to such service, and those which are apparent to ordinary observation, and, when he accepts or continues in the service with knowledge of the character of appliances from which injury may be apprehended, he also assumes the hazards incident to such situation.
5. SAME--Defined. The risks assumed by an employee are such perils as exist after the employer has used due care and precaution to guard the former against danger, by providing him a reasonably safe place to work in, reasonably safe appliances to work with, reasonably safe materials to work upon, and reasonably competent fellow servants to work with, but when the employee undertakes to use defective or unsafe appliances with knowledge of such unsafe condition, he assumes the increased risk of danger, and the employer is relieved from responsibility to the employee by reason of the employee's knowledge.
6. EMPLOYER--Duty of--Not Delegated. It is the duty of the employer to provide the employee with reasonably safe machinery, tools and appliances with which to do his work, and he cannot relieve himself from liability by delegating this duty to another, and in case of injury resulting from defective or unsafe appliances, the relations of fellow servants cannot arise.
7. EMPLOYER--Notice to--Effect of. If an employee discovers that appliances furnished him by the employer with which to do his work are defective or dangerous, and informs the employer of such defect and requests that the employer remedy such defect so as to avoid increased risk, and the employer gives him assurances that the defect will be remedied, and relying upon such assurance the employee continues in the service, but before the repairs are made, an injury results to the employee by reason of such defective appliances, the employee will ordinarily be entitled to recover. But if, after giving such assurances and prior to the accident the employer directly or indirectly revokes his former promise to repair or remedy, the employee will not in such event be warranted in further continuing his service based upon such promise to repair, and under such circumstances the question of contributory negligence should ordinarily be left to the jury.
8. CONTRIBUTORY NEGLIGENCE--When Question of Law. When on the trial of a cause a question is presented as to the existence of negligence or contributory negligence, and the facts which the evidence reasonably tends to establish are such that all reasonable men must draw the same conclusions from them, the case is one of law for the court, but if fair minded men may honestly draw different conclusions, the cause should not be withdrawn from the jury.
The plaintiff, Neeley, brought this action in the district court of Oklahoma county to recover damages from the Southwestern Cotton Seed Oil Company for personal injuries received while in the employ of the defendant. The plaintiff was a common day laborer, and had been in the employ of the defendant as such for only a few weeks when the accident occurred. The defendant is a corporation engaged in the manufacture of cotton seed oil and cotton seed products at their plant at Oklahoma City. As part of their buildings, was a large room about thirty by fifty feet, containing portions of their mill machinery; through this room about eighteen feet from the floor, extended a steel revolving shaft, on which were pulleys, and from which connecting belts drove these various machines. The floor was smooth and slick from the oil; one of the pulleys on this shaft carried an eight inch leather belt to the pulley on the "linters." Occasionally this belt slipped off the upper pulley while the machinery was in motion, and it was necessary to go up to the upper shaft to replace it. It is usual and customary in oil mills of this character to have a foot board placed a few feet below the shaft, upon which persons can walk and stand when oiling or repairing the machinery or adjusting the belts. This mill had only been completed one season, and no foot board had been placed in position. The company had procured to be made for its use a ladder about eighteen feet long, constructed of two 2 by 4 pine scantlings, dressed down to about 2 by 3 1-2 for side pieces, upon which steps or cross pieces were nailed, made from 1 by 3 boards. This ladder was weak on one side, and had a tendency to turn sideways with the weight of a person, and to avoid this defect, a I by 4 board about two to three feet long had been nailed on the inner side of the right hand scantling. This ladder was furnished by the company to be used for placing the belt upon the upper shaft or pulley. In order to perform this difficult feat, the lower end of the ladder was placed upon the floor, and the upper end rested against the revolving shaft; one employee then ascended the ladder and lifted the belt in place, while another employee went upon some part of the machinery and held the other end in place, and the two operating together thus readjusted the belt to its proper place. It required from the man upon the ladder a force or resistence of from one to two hundred pounds to force the belt onto the pulley. All the employees who had used this ladder considered it weak and limber, and two or three had called the attention of the superintendent to this fact, and requested that the company put up a foot board to avoid the anticipated danger. The superintendent informed the employees who gave him this warning that he understood his business, and that if they did not want to use the ladder, he would get some one who would. On the 31st day of January, 1899, the plaintiff, who had been in the employ of the company about two weeks as a laborer, was engaged in operating the machinery in the room in question, when the belt came off and he and a fellow servant attempted to replace it. The plaintiff placed the ladder in position and ascended it and took the belt in his hands and was in the act of placing it on the pulley when the ladder gave down and fell to the floor with the plaintiff. The plaintiff received injuries resulting in a severe shock, a wound on the head and the fracture of the bones in both wrists.
After the fall, one side of the ladder was found broken apart, and the piece that had been nailed on to strengthen it was both broken and split. About one week before the accident the night foreman had told the plaintiff that he intended to put up a foot board along the shafting in question, and about three days before the accident the plaintiff told the foreman that the ladder seemed unsafe, and asked him to put up a foot board. To this request the reply was: "That ladder is all right, and you boys go ahead, and if it don't suit you, and you can't do this work, I'll get men that can do it." The plaintiff previous to the accident was strong and able bodied, 33 years old, and a common laborer, and has been disabled from work ever since.
The plaintiff on the trial of the cause to a jury introduced evidence tending to establish the foregoing state of facts. The defendant demurred to the evidence and the court sustained the demurrer and rendered judgment for the defendant. From this judgment the plaintiff has appealed, and we are called upon to review the proceedings below.
June, 1903, Decided
Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.
Hays & McMechan and M. Fulton, for plaintiff in error.
Howard & Ames, for defendant in error.
¶1 In the briefs presented for our consideration, a great many cases are cited from the various state courts and quite a number from the supreme court of the United States. The questions embraced in this case have been extensively discussed by the jurists and authors, and no court or text writer has ever been able to harmonize the numerous decisions. Every question presented could be decided either way, and have ample authority for its support. The supreme court of the United Slates has in the last quarter of a century had before it every legal proposition that is likely to arise in a personal injury case, and enunciated...
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