Petroleum Iron Works Co. v. Bullington

• Decision Date: 28 November 1916
• Docket Number: Case Number: 7919
• Citation: 61 Okla. 311,161 P. 538,1916 OK 997
• Parties: PETROLEUM IRON WORKS CO. v. BULLINGTON.
• Court: Oklahoma Supreme Court

1916 OK 997

161 P. 538

61 Okla. 311

PETROLEUM IRON WORKS CO. v. BULLINGTON.

Case Number: 7919

Supreme Court of Oklahoma

Decided: November 28, 1916

Syllabus

¶0 1. Trial--Demurrer to Evidence.

It is only where the evidence with all the inferences to be drawn therefrom is insufficient to support a verdict for the plaintiff that a demurrer to the evidence can properly be sustained, or a verdict directed for the defendant.

2. Appeal and Error--Instructions--Prejudicial Error.

The jury is not supposed to know when the court correctly or incorrectly states the law, and it is prejudicial error for the court to give conflicting instructions to the jury, and thus leave the jury to decide conflicting principles of law.

3. Trial--Injuries to Servant--Inconsistent Instructions.

Instructions numbered 15 1/2 and 19, respectively, given in this case, carefully considered, and held to be in direct conflict.

Error from District Court, Pawnee County; Conn Linn, Judge.

Action by James Bullington against the Petroleum Iron Works Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Keaton, Wells & Johnston and L. V. Orton, for plaintiff in error.

McNeill & McNeill, for defendant in error.

COLLIER, C.

¶1 Suit was brought by James Bullington against the Petroleum Iron Works Company, to recover damages for personal injuries alleged to have been sustained by the negligence of said company.

¶2 The negligence alleged, upon which recovery is predicated, is that the defendant negligently constructed and maintained steps without banisters, leading from the ground to the top of a tank upon which the plaintiff was employed.

¶3 The defendant demurred to the petition which was overruled and excepted to. Thereupon the defendant filed his answer denying each and every allegation of the petition, except that the plaintiff was in its employ at the time stated; (2) that the injury occurred by reason of plaintiff's own negligence directly contributing thereto; (3) that plaintiff was familiar with the character of the steps referred to and assumed all risks incident to ascending and descending the same. To this answer the plaintiff replied, denying each and every material allegation, except that the steps were open and visible.

¶4 The uncontradicted evidence is that the plaintiff was employed as a laborer by defendant; that he ascended said steps in the morning, descended said steps at noon, and that he again ascended said steps, and in descending said steps at the completion of his day's work, with the other persons engaged with him in the work, that he fell from said steps and was severely injured. It is further in evidence that said gang of workmen, working with the said Bullington, were being directed by a foreman known as the "Bull Gang Boss"; that banisters had been furnished for said steps and were lying on the ground near said steps, but had not been attached to same; that said steps shook when persons were upon them, and there was nothing at the sides of the steps to prevent persons from falling off; that plaintiff had not complained of the condition of the steps; that he was unaccustomed to the character of work in which he was engaged, and he admitted that he had signed a written statement some time after the accident in which he said:

"There was some kind of a piece on one of the steps. I caught my heel on this piece and that knocked my step off and caught my heel on something and knocked the heel off my slipper. When my foot struck the piece it sounded like iron. I fell off the steps and fell down underneath."

¶5 Upon the completion of the testimony, the defendant demurred thereto, which was overruled and excepted to. Thereupon the defendant requested the court to direct a verdict for the defendant, which was overruled and excepted to.

¶6 Among other instructions given by the court are instructions numbered 15 1/2 and 19, respectively, which read as follows:

"No. 15 1/2. You are further instructed that an employer is not liable to an employe on account of any injuries sustained by such employe from the negligence of a fellow servant, and all such persons engaged in the same common work are fellow servants, even though one may be a foreman in general charge of the job."

"No. 19. Where the master gives to a person power to superintend, control, and direct the men engaged in the performance of work, such person, as to the men underneath him, is a vice principal, and it can make no difference whether he is called a superintendent. conductor, boss or foreman. For his negligent acts and omissions in performing the duties of the master the master is liable."

¶7 To the giving of said instruction No. 19, the defendant duly excepted, and assigns the same as error. The jury returned a verdict in favor of the plaintiff in the sum of $ Within the statutory...