O'Neil v. Vie

• Decision Date: 27 November 1923
• Docket Number: Case Number: 12334
• Citation: 220 P. 853,1923 OK 1048,94 Okla. 68
• Parties: O'NEIL, Receiver, v. VIE.
• Court: Oklahoma Supreme Court

1923 OK 1048

220 P. 853

94 Okla. 68

O'NEIL, Receiver, v. VIE.

Case Number: 12334

Supreme Court of Oklahoma

Decided: November 27, 1923

Syllabus

¶0 1. Master and Servant--Injuries to Servant--Negligence.

The mere fact that the servant received injury does not establish, even prima facie, the negligence or breach of duty of the master.

2. Negligence--Reasonable Care.

Whether or not a defendant is guilty of negligence depends upon the question whether he exercised reasonable care under the circumstances existing at the time; not whether he had done everything which it was possible to do in the light of every possible danger that might arise.

3. Same--Evidence.

Negligence must be shown by evidence, and the evidence, to justify a finding of negligence, must show a breach of duty on the part of the defendant such that a reasonable person should have foreseen would as a natural consequence cause an injury; not necessarily would probably cause an injury in the sense of more likely to cause an injury than not, but the likelihood must be such that a reasonable person could foresee that injury would result in the ordinary course of things. A mere possibility of the injury is not sufficient, where a reasonable man would not consider injury likely to result from the act as one of its ordinary and probable results.

4. Master and Servant--Liability for Injuries to Servant--Mere Accidents.

For accidental injuries, or such as occur without any act of negligence on the part of the master, the master is not liable to the injured servant.

5. Animals--Liability of Owner for Injuries by.

The criterion usually adopted in determining the liability of the owner for injuries inflicted by a domestic animal is whether he could have reasonably anticipated the occurrence of injury.

6. Master and Servant--Relation--Assisting Train Crew in Emergency.

One who, at the request of a member of a train crew left in charge of a wreck, during the temporary absence of the conductor, an emergency existing reasonably requiring such assistance, temporarily assists in the work of releasing horses and mules entangled among the wreckage, the regular crew not being reasonably able to release the animals, is for the time being the servant of the defendant and entitled to the same protection as any other servant.

7. Negligence--Proximate Cause.

There must be causal connection between the negligence averred and the injury received to entitle a plaintiff to recover.

8. Master and Servant--Duty to Furnish Safe Place to Work--When Rule Inapplicable.

The rule of law, making it the duty of the master to use ordinary care to furnish and maintain a reasonably safe place for the servant in which to perform his work, has no application to a situation where from the nature of the employment the object of the work is to make an unsafe place safe, and does not render the master responsible for dangers which necessarily inhere in the work and are only to be guarded against by the care of the servant himself in its performance.

Horton & Gill and Warner, Hardin & Warner, for plaintiff in error.

Wilson & Wilson and A. C. Sewell, for defendant in error.

FOSTER, C.

¶1 This action was commenced in the district court of Pittsburg county, Okla., on the 17th day of December, 1919, by L. G. Vie, defendant in error, plaintiff below, against Arthur L. Mills, receiver of the Fort Smith & Western Railroad, plaintiff in error, defendant below, to recover the sum of $ 3,000 for alleged personal injuries caused by the negligence of the railroad company. By stipulation of counsel since the appeal has been lodged in this court, Charles T. O'Neal, receiver of the Fort Smith & Western Railroad, has been substituted as plaintiff in error in place of Arthur L. Mills, receiver. The parties will be hereinafter referred to as they appeared in the court below. Issues were joined on the second amended petition of the plaintiff. The second amended petition charged that on or about the 20th day of December, 1917, while engaged in the interstate transportation of several cars of horses and mules a wreck occurred on the defendant's line of railroad a short distance east of Quinton, Okla., in which several freight cars, containing horses and mules, were derailed, and said animals entangled in the wreckage; and that plaintiff was employed to assist in rescuing said animals, and that while so employed, was directed by a member of the train crew in charge of the wreck to go among said mules and horses and place a rope around the neck of one of the animals so that the animal could be dragged from the wreckage and released, and while so engaged in placing the rope around the neck of a mule, another mule bit the plaintiff on the right leg, between the ankle and the knee, breaking two bones of the leg and causing a permanent injury, to his damage in the sum of $ 2,850, and that plaintiff was compelled to incur an additional expense of $ 150, for medical attention, making a total damage of $ 3,000. The petition charged negligence by the defendant in failing to warn plaintiff of the dangers involved in going among said animals; in failing to furnish sufficient light, and in failing to provide a safe place for plaintiff to perform his work.

¶2 The answer of the defendant, besides a general denial, pleaded that the action was barred by the statute of limitations; contributory negligence of plaintiff, barring him from recovery; assumption of risk; res judicata by reason of an order of the United States District Court, entered on the 8th day of July, 1919, whereby plaintiff was estopped. Said answer further affirmatively alleged that if plaintiff was employed at the time of his injury, he was employed in interstate commerce and that the defendant was then an interstate carrier. The pleas of res judicata and the statute of limitations, however, were abandoned by the defendant, and no error is assigned based upon any ruling of the court thereon at the trial. The reply of the plaintiff was a general denial. The cause came on for trial in the district court of Pittsburg county on the 3rd day of March, 1921, before the court and a jury. At the close of plaintiff's evidence, the defendant interposed a demurrer thereto, which was overruled by the court and exceptions allowed. At the close of all the evidence and before the jury was instructed by the court, it was agreed by both parties that if the plaintiff was employed in any capacity by the defendant at the time he was injured, he was then engaged in interstate commerce as such employee. At the close of all the evidence a directed verdict was requested by the defendant, refused by the court, and exceptions taken. The trial resulted in a verdict for the plaintiff in the sum of $ 1,500. From a judgment based on this verdict, the defendant brings the cause regularly on appeal to this court, and complains that the trial court erred:

First. In overruling defendant's demurrer to the evidence, and in refusing to instruct a verdict for defendant.

Second. In instructing the jury.

Third. In admitting testimony.

¶3 We find ourselves unable to agree with the first contention of the defendant, that the plaintiff was a mere volunteer at the time of the accident, and that therefore the defendant owed plaintiff no duty. It is true that the evidence upon the question of the employment of the plaintiff by defendant was somewhat vague and indefinite. Still, in view of the fact that a serious wreck had occurred without warning, in which scores of horses and mules were pinned underneath the wreckage of the derailed freight cars, we think, in spite of the fact that the conductor had only temporarily abandoned the wrecked train, and that adequate help to relieve the animals and clear the obstruction was close at hand, that an emergency existed authorizing the train crew who were left in charge of the wreck by the conductor, pending his return, to temporarily employ assistants to relieve the situation; and that these circumstances bring the case within the rule of law laid down by this court in the case of St. Louis & S. F. Ry. Co. v. Bagwell, 33 Okla. 189, 124 P. 320, and other cases cited in the opinion, where the court said in the syllabus:

"One who, at the request of a conductor in charge of a freight train, an emergency existing reasonably requiring such assistance, temporarily assists in the work of the carrier in the unloading of a safe from one of its cars, the regular crew not being reasonably able to unload same, is, for the time being, the servant of the defendant and entitled to the same protection as any other servant. "

¶4 There is evidence that one of the train crew, during the absence of the conductor, requested plaintiff to assist in releasing the animals from the wreckage, that the railroad company would pay him for his services, and that it was while engaged in carrying out this request that the injuries were received. The evidence further shows that when the conductor left the wreck in search of a wrecking crew, he instructed the balance of the crew to do what they could to release the animals from the wreckage of the derailed cars. A more serious question, however, is presented when we come to consider whether or not the defendant was actually guilty of negligence in failing to warn the plaintiff against the danger of being bitten by one of the animals at the time he went among them to place the rope around the mule's neck. Before disposing of this proposition, let us notice the contention of the plaintiff that defendant was negligent in not furnishing a sufficient light. The evidence fails to disclose the exact hour at which the plaintiff received his injuries, but there is some evidence that about this time, or soon thereafter, it began growing dark. For instance, it appears that after the injury and while plaintiff was being carried to the automobile of Mr. Mathews, an examination was made of his injuries by means of a light. Concerning the accident, plaintiff...