Oklahoma Portland Cement Co. v. Brown
| Decision Date | 22 December 1914 |
| Docket Number | 4582. |
| Citation | 146 P. 6,45 Okla. 476,1914 OK 658 |
| Parties | OKLAHOMA PORTLAND CEMENT CO. v. BROWN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Feb. 2, 1915.
Syllabus by the Court.
In a suit in damages for personal injuries, where the evidence discloses that, at the time he was injured, plaintiff was at work for defendant in a room or bin 50X50 feet at the base of a pile of cement, which became dangerous and would slide and sweep everything before it when it assumed an angle of more than 45 degrees, that plaintiff was one of the crew engaged in shoveling the cement into sacks, weighing it and trucking it away, that prior thereto and at that time it was a part of the system adopted by defendant in running said business acting through its foreman, to warn the crew, engaged in undermining the bank, of an impending slide, and that, while so engaged with his back to the bank, a slide occurred unanticipated by him, and without the customary warning being given, or notice of any kind to him, and he was injured held sufficient evidence to take the question of negligence to the jury on the allegation contained in the petition, in effect, that defendant had failed to exercise ordinary care to furnish plaintiff a reasonably safe place to work and proper means to protect him from injury. Held, further, that the character of the work was not so complex as to require defendant to make rules and regulations to govern it, as a matter of law.
Where there is neither allegation nor proof that it was the duty of the master to make rules and regulations governing the work in which plaintiff was employed at the time he was injured but the court left it to the jury to say whether it was or was not, and charged that, if plaintiff was injured as a result of such failure, defendant was liable, and it further appears that where it is, in effect, alleged that defendant failed to use ordinary care in furnishing plaintiff reasonably proper appliances, but there is no evidence reasonably tending to support the allegation, it was error for the court to submit those issues to the jury, and, it appearing that they were misled thereby, the error is prejudicial and reversible.
Error from District Court, Pontotoc County; Tom D. McKeown, Judge.
Action by R. M. Brown against the Oklahoma Portland Cement Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Blanton & Andrews, of Pauls Valley, and Wimbish & Duncan, of Ada, for plaintiff in error.
I. O. Lewis, Kennamer & Coakley, and Rider & Hurt, all of Madill, and Crawford & Bolen, of Ada, for defendant in error.
On March 4, 1908, R. M. Brown, defendant in error, in the district court of Pontotoc county, sued the Oklahoma Portland Cement Company, plaintiff in error, in damages for personal injuries. His petition substantially states that on February 12, 1908, and for some time prior thereto, he was in the employ of defendant in its cement plant near Ada; that, as such employé, it was his duty to weigh cement after it had been sacked; that his place to work was in a large room or bin, which contained a large quantity of cement; "that by reason of the fact that defendant corporation had not made the said bin or room in which he was assigned safe, and provided the proper means and appliances to protect him, while so engaged, from injury," there was a slide in the cement which dashed his foot against the scales he was using and injured him; that he did not know of the dangerous nature of the work to which he was assigned, nor had he prior notice or warning of the slide; that by a proper construction of the room his place to work would have been made safe, but, as it was, the room was so negligently constructed as to be unsafe and a dangerous place in which to work. He prayed $5,000 damages. For answer, defendant, after admitting its corporate existence, that plaintiff was in its employ on the day named, and that his duties were as stated, pleaded in effect a general denial, assumption of risk, and that the negligence, if any, complained of was that of a fellow servant. There was trial to a jury and judgment for plaintiff for $3,500, and defendant brings the case here.
For the reason that the evidence reasonably tends to prove negligence, the court did not err in refusing to instruct the jury to return a verdict for defendant. There is little dispute as to the facts. The evidence discloses that on the day he was injured plaintiff was in the employ of defendant in its cement works near Ada; that it was a large plant and employed many men, who worked in crews or gangs, all engaged in manufacturing cement and preparing it for shipment; and that, after it was manufactured, it was conveyed to the packing department and stored in bins, from whence it was sacked and shipped. The bin in which plaintiff was injured was about 50 by 50 feet, made of concrete. The cement was emptied into it from a conveyor attached to the ceiling about 10 or 12 feet from the floor. The spout was near the middle of the room, and, as the cement fell, workmen distributed it about the room until the bin was full, planking up the two doors thereto which opened into a runway. When the bin was full, a crew of four men would, working in the runway, from a space at the bottom of each of these doors, shovel the cement into sacks and weigh it and truck it away. They rotated in the work; i. e., one would shovel, another would hold the sacks, another would weigh, and another would truck away, until 50 sacks were disposed of. After that they would change work. After the cement had been sufficiently removed from the door, they would work their way into the room, bringing their scales and other appliances with them, and there pursue their work until the bin was empty. Shoveling, as they were, from the base of the bank, the cement would gravitate when it assumed an angle of more than 45 degrees, at which time, being heavy, it was dangerous and would slide and the avalanche sweep everything before it. These slides were frequent and would sometimes occur three or four times a day, but had, it seems, never occurred in the bin where plaintiff had worked since he took service there. It was the duty of the men to look out for and attend to these slides, and, to this end, defendant had provided all proper appliances to enable the men to bring them down in safety and without injury to themselves. At the time of the injury complained of, plaintiff was one of the two crews working in one of the bins, as stated. Each crew had shoveled its way into the bin through one of the doors opening into the runway, and had reached a point in the bin about 15 feet from the door. At that time, and while plaintiff had his back to the bank and a full sack upon the scales, a slide occurred, which carried him to the wall and threw him against the scales and injured his foot. He did not know that the slide was threatened or coming, and was not warned by Moses, the foreman, whose duty it was so to do and, together with the crew, keep a lookout and prevent it. We say not warned or received warning of any kind for the reason he so testified. Moses testified that a few moments before the slide he, from the door of the bin, looked in and warned the crew that the slide was coming. The members of the crew also testified that they saw the slide coming and got out of the way, but that plaintiff made no effort so to do. As to whether he was warned was the only disputed question of fact in the case, which, for the purpose of determining the question before us, must be resolved in favor of the plaintiff, and so, we repeat, he was not warned. The evidence further discloses that this warning was a part of the system adopted by defendant in running its business; that such it was at the time plaintiff was employed; that such it continued to be up to the time of the injury complained of; and that Moses was expressly delegated by the superintendent to give them. If it were not in evidence that the duty to give this warning was a part of the system, this case might well be disposed of by quoting from what we said in Ft. Smith & Western Ry. Co. v. Ketis, 26 Okl. 696, 110 P. 661, for it is beyond dispute that plaintiff was employed in making a safe place dangerous at the time he was injured, in that he was undermining a pile of cement, which was being rendered constantly more dangerous and liable to slide as the work progressed. In that case we said:
...
To continue reading
Request your trial