Payne v. Holder
| Decision Date | 09 October 1923 |
| Docket Number | 11938. |
| Citation | 219 P. 372,92 Okla. 283,1923 OK 772 |
| Parties | PAYNE, DIRECTOR GENERAL OF RAILROADS, AS AGENT DESIGNATED BY THE PRESIDENT, v. HOLDER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
To hold the master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury there must be some substantive proof of negligence; knowledge of the defect or some omission of duty in regard to it must be shown.
When a servant receives an injury from a latent defect in an appliance, evidence to establish the master's liability must justify the inference that he either knew or by the exercise of the care required of him might have known of the defect, but he will not be responsible for a defect which the most careful scrutiny would not have disclosed.
The evidence examined, and held, that it does not disclose actionable negligence on the part of the defendant and that the demurrer to the evidence should have been sustained.
Commissioners' Opinion, Division No. 5.
Appeal from Superior Court, Pottawatomie County; Leander G. Pitman Judge.
Action by Christian Holder against John Barton Payne, Director General of Railroads, as Agent designated by the President. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.
C. O Blake and W. R. Bleakmore, both of El Reno, A. T. Boys, of Oklahoma City, and W. F. Collins, of El Reno, for plaintiff in error.
Maben & Pitman, of Shawnee, for defendant in error.
This is an action by defendant in error, as plaintiff, against plaintiff in error, as defendant, in the superior court of Pottawatomie county, to recover damages for personal injuries suffered on account of the alleged negligence of the Director General of Railroads. The parties will be referred to as they appeared in the trial court.
The petition alleges in substance, with reference to the negligence of the defendant, that the plaintiff was employed by the defendant as a boiler maker in the shops of the Chicago, Rock Island & Pacific Railway Company, in the city of Shawnee, Okl., and that on said date it became and was the duty of the plaintiff to take an air hammer and pin out the flues of one of the defendant's engines; that it was and became necessary to make a requisition for said hammer and that the plaintiff did make a requisition for the same and that plaintiff's helper, whose name is unknown to plaintiff, went to the toolroom of the defendant and requested and made requisition of the keeper of said toolroom for an air hammer, and that the keeper of said toolroom, and agent and servant of the defendant, supplied plaintiff's helper with the air hammer, which was thereafter used by the plaintiff; that the air hammer is a complicated piece of machinery and the defects in the same are only discernible by careful examination, and plaintiff says that he received said hammer from the keeper of the toolroom, and proceeded to use the same in furtherance of the work which he was required to do; that he was pinning out the flues of said engine when he sustained the injuries complained of; that the said air hammer is worked and put in motion by means of a trigger and is stopped and controlled by means of a trigger, and plaintiff says that he put said air hammer in action and was proceeding with the work of pinning out said flues when it was and became necessary to stop the operation temporarily to go from one flue to another; that, when plaintiff had pinned out the first flue and attempted to stop the operation of said hammer by means of said trigger, the machinery and appliances of said air hammer refused to work and operate, and refused to stop so that plaintiff could proceed with his work, and that, on account of the same failing to stop when plaintiff used the trigger, plaintiff's hand was fastened between the hammer and the steam pipe, and said air hammer proceeded to hammer and operate against the left hand of the plaintiff, mashing, bruising, and breaking said hand in the manner hereinafter set forth; that plaintiff had never used said hammer previous to said time and did not know of its defective condition, but plaintiff says that the defendant had said hammer in its shops and under its control and that the same was in its toolroom in charge of a toolhouse keeper, whose name is unknown to plaintiff, and that it was the duty of said keeper to make examination of said tools and to know that they were in a reasonably safe condition for use by the plaintiff, as well as other employees of the defendant who might have occasion to use said tools, and plaintiff says that said hammer was wholly defective and out of repair, and that by reasonable inspection on the part of the defendant by its agent and servant whose duty it was to inspect the same and keep the same in a reasonable state of repair could and should have known of the defective condition of the same; that the plaintiff relied upon the same being in a reasonably safe condition for use, and that while handling same plaintiff was in the exercise of due care and caution for his own personal safety; that the defendant negligently and carelessly failed to furnish plaintiff with reasonably safe tools and appliances with which to do his work at said time and that such negligence was and did constitute the proximate cause of his injuries.
Defendant's answer, in addition to a general denial, for further and separate defense, averred that if plaintiff was injured at the time and place mentioned in the petition any injuries received by him were caused wholly by his own negligence and want of care, and that such injuries were in no respect due to any negligence or want of care on the part of the defendant, or its servants, agents, or employees. Defendant further pleaded the defense of contributory negligence and the assumption of risk.
For further reply plaintiff denied each, every, and all the allegations in said answer except such as are affirmatively alleged in plaintiff's petition.
On June 29, 1920, the cause proceeded to trial, resulting in a verdict in favor of plaintiff for $500, upon which a judgment was rendered. At the close of the evidence defendant demurred to the same, which demurrer was by the court overruled, to which defendant excepted. Defendant thereafter moved the court to instruct the jury to return a verdict in his favor, which motion was overruled, to which action of the court defendant excepted. In due time defendant filed his motion for new trial which was by the court overruled; the defendant excepted to the action of the court, and gave notice of his intention to appeal to this court.
For a reversal of the judgment, defendant assigns the following specifications of error: First, the trial court erred in overruling the motion of defendant for a new trial; second said cour...
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