New v. Stout

• Decision Date: 15 January 1924
• Docket Number: Case Number: 11649
• Citation: 98 Okla. 177,224 P. 519,1924 OK 34
• Parties: NEW et al., Receivers v. STOUT.
• Court: Oklahoma Supreme Court

1924 OK 34

224 P. 519

98 Okla. 177

NEW et al., Receivers v. STOUT.

Case Number: 11649

Supreme Court of Oklahoma

Decided: January 15, 1924

Syllabus

¶0 1. Negligence--Capacity of Child Over 14--Question of Fact for Jury.

While some authorities, on the supposed analogy to the rule of the criminal law, hold that a child between the age of 7 and 14 years is presumptively incapable of exercising judgment and discretion, and that after he has attained the age of 14, the contrary presumption prevails, it cannot be universally presumed that persons at a definite age, say 14 years, pass suddenly from incapacity to full capacity and discretion. There is no foundation for such a presumption for the jury. The better rule is that it is a question for the jury to determine, without regard to any arbitrary capacity to understand the danger and ability to take care of himself under the circumstances. Texas, O. & E. Ry. Co. v. McCarroll, 80 Okla. 282, 195 P. 139.

2. Pleading -- Petition -- Sufficiency on General Demurrer.

In considering the sufficiency of petition against a general demurrer, no one particular fact or circumstance alleged should be singled out and made the basis of the action but all the facts and circumstances alleged and the reasonable inferences to be drawn therefrom should be considered as one connected whole.

3. Same -- Action Against Railroad for Personal Injuries to Youthful Employe.

In an action for damages a petition that states as follows: "Because plaintiff was young and inexperienced, and had never worked on such a bridge before and did not understand or appreciate the danger of said place, nor did he realize the perils of the unusual place in which he was directed to work, all of which facts were known to the agents and employes of the defendants directing said work; that they knew he was only about 15 years of age, and that he had never worked on a high bridge before, and had only been working on the section at Allen in common ordinary section work on the ground for some four or five days, and was without any previous experience, wherefore, the plaintiff says that the defendants were guilty of gross negligence in directing him to the place and to do the work in which he was engaged under the circumstances and in the manner and at the place as hereinbefore alleged" is sufficient in this case against a general demurrer.

4. Master and Servant--Safety of Working Place--Statutory Duty of Builders.

Section 7269, Comp. Stat. 1921, is declaratory and controlling in fixing the duty of all builders in this state in the matter of making their climbing, supporting, and lifting machinery or contrivances safe for the employes according to the character of the workers and the circumstances of the work.

5. Trial -- Demurrer to Evidence -- When Overrruled.

Where the evidence is sufficient to reasonably tend to support the allegations of a petition that states a cause of action, a demurrer to such evidence should be overruled. Cameron & Co. v. Henderson, 40 Okla. 648, 140 P. 404.

6. Negligence--Duty of Care--Danger to Children.

The courts have always made a difference in the application of rules guarding against dangers with mature persons and children; what would be ordinary care in the one case might be negligence in the other.

7. Master and Servant--Action for Injuries--Overruling Motion for Directed Verdict.

The record examined in this case, and held not error to overrule motion of defendants for peremptory instruction.

8. Same--Sufficiency of Instructions.

The instructions examined, and held to fairly cover the issues involved in the case, and it was not error to refuse to give the requested instructions.

9. Same--Verdict--Excessiveness of Recovery.

In an action for damages on account of personal injuries to a 15 year old boy, caused by the negligence of defendant, resulting in the loss of one leg and permanent injury to one arm, a judgment for $ 20,000 is not excessive.

Commissioners' Opinion, Division No. 3.

Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Action by Kermit Stout, by next friend, against receivers of Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff. Defendants appeal. Affirmed.

John E. M. Taylor for plaintiffs in error.

Robert Wimbish and W. C. Duncan, for defendant in error.

THREADGILL, C.

¶1 This is an appeal by plaintiffs in error, defendants below, from a judgment of the district court of Pontotoc county, in favor of defendant in error, plaintiff below, and for convenience and brevity the parties will be referred to in this opinion as they were there. The action is by the plaintiff minor, through his mother as next friend, for damages for personal injuries while in the employ of the defendants caused by their negligence.

¶2 The plaintiff was a boy 15 years of age and was employed by the section foreman of the defendants to do common labor on the section of the railroad near Allen, in Pontotoc county, in May, 1918, at a time when labor was scarce and hands were hard to obtain. Plaintiff was a youth only 15 years of age and without experience in railroad work, and after working on the section near Allen for three or four days he was ordered, with others, to go south on the road to assist in ballasting a bridge near Tupelo, in Coal county. There were two other section forces besides the one from Allen ordered to do this work, making about 18 or 20 men altogether. The span to be repaired was short and the men worked in close proximity to each other with picks and shovels, raising the ties and putting chats under them. The plaintiff, while using a pick and shovel in this work, standing on one side of the bridge and near the edge of the open platform, stuck his pick in the end of a cross-tie near the edge of said platform while he used the shovel, and then taking hold of the handle of the pick to draw it from the place where he had stuck it, gave it a jerk, and in this act lost his balance and fell off of the platform to the ground, breaking his leg and arm and rendering him unconscious for a time and resulting in the loss of one leg and permanent injury to one arm. His services were $ 2.00 a day.

¶3 The petition alleges, in substance, that the defendants did not provide the plaintiff a safe place to work for the reason that the platform had no railing or bannister along its outer edge to prevent workmen from falling over the same in case they accidentally or otherwise lost their balance while working close to the edge thereof; that the place where plaintiff was directed to work was a high and dangerous place and that if the defendants had used ordinary care to make the same a reasonably safe place they would have placed rails or bannisters along the same, and that if it had been done plaintiff would not have suffered his injuries as aforesaid; that too many men were at work and too close together, and the workmen did not have sufficient space to use the pick and shovel and on account of this crowded condition the plaintiff failed to stick the pick as securely in the timber as he would have done if it had not been for this crowded condition; that the plaintiff was young and inexperienced and did not understand or appreciate the danger of said place where he was directed to work; that all of these facts were known to the agents and employes of the defendants directing said work; that they knew he was only about 15 years of age; that he had never worked on a high bridge before, and had only been working on the section at Allen in common ordinary work on the ground for four or five days and was without experience.

¶4 The defendants filed a general demurrer to the petition which was overruled and exceptions saved. They then filed answer consisting of a general denial, pleading contributory negligence, assumption of risk, and the employers' liability act of April 2, 1908. The plaintiff filed a reply consisting of a general denial and admission of employers' liability act. At the close of the plaintiff's testimony leave was given to amend the petition to conform to the facts proven. The issues were tried to a jury on January 19, 1919, and resulted in a verdict and judgment in favor of the plaintiff in the sum of $ 20,000, and the defendants appeal by petition in error and case-made.

1. The defendants claim first that the court erred in overruling their demurrer to the petition. They say that the petition did not state facts sufficient to constitute a cause of action. The substance of their complaint and argument is, that admitting all the statements and reasonable inferences to be drawn therefrom, as stated in the petition, to be true, the same are not sufficient to charge primary negligence against the defendants. In discussing this question they divide the acts of negligence charged in the petition into three divisions: First, as to whether or not the bridge was a safe place to work with no railing or bannisters along its outer edge to guard workmen from falling off, and whether or not ordinary care and prudence required this on the part of the defendants; second, whether or not it was negligence on the part of the defendants to allow the working force on the bridge to work in such close proximity to each other, and, third, whether or not it was negligence for the defendants to employ the plaintiff to work on this bridge, knowing that he was only 15 years of age and that he had never worked on a high bridge before. The defendants cite many authorities under each one of the divisions in support of their contention that neither one of these particular charges, as set out in the petition and as construed by them, was sufficient to allege primary negligence against them. They cite the following cases: Southern P. Co. v. Gloyd, 138 F. 388; Nugent v. Brooklyn Electric Co., 72 N.Y.S. 67; Harrymans v. C. N.W. Ry, Co., 147 Wis. 605, 133 N.W. 153; St. L. S. F. Ry. Co. v. Long, 41 Okla. 177, 137 P. 1156; Kilpatrick v. C., O. & G. R. R. Co., 195 U.S. 624, 49 L. Ed. 349, 25

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