Phillips Petroleum Co. v. Manning

• Decision Date: 03 February 1936
• Docket Number: No. 10421.,10421.
• Citation: 81 F.2d 849
• Parties: PHILLIPS PETROLEUM CO. v. MANNING.
• Court: U.S. Court of Appeals — Eighth Circuit

81 F.2d 849 (1936)

PHILLIPS PETROLEUM CO. v. MANNING.

No. 10421.

Circuit Court of Appeals, Eighth Circuit.

February 3, 1936.

Rayburn L. Foster, of Bartlesville, Okl. (Neill C. Marsh and Neill C. Marsh, Jr., both of El Dorado, Ark., and R. H. Hudson, of Bartlesville, Okl., on the brief), for appellant.

Charles E. Wright and Robert C. Knox, both of El Dorado, Ark. (Lamar B. Smead, of El Dorado, Ark., and Homer T. Rogers, of Smackover, Ark., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

Appellee, plaintiff below, brought action in the lower court to recover for the death of her intestate. We shall refer to the parties as they appeared below.

The complaint charged that plaintiff's intestate, at the time of receiving the injuries from which he later died, was in the employ of defendant, and was one of a crew of men engaged in pulling the tubing and rods from an oil well; that defendant had erected and maintained over said well a steel derrick, which, by reason of defendant's negligence properly to construct and maintain, had become warped, twisted, out of plumb, and greatly weakened; that to pull the tubing and rods it was necessary that steel lines of cable be suspended from the crown block of the top of the derrick and connected with the tubing and rods and be operated through pulleys or blocks in the nature of a block and tackle, which lines were connected with a tubing pulling machine operated by a gasoline engine; that, at the time in question, the tubing pulling machine was a large and powerful truck developing many horse power and capable of running at high speed; that plaintiff's intestate, in the performance of his duties, was required to go up into the derrick and stand on a board for the purpose of steadying and placing various sections of tubing and rods as they were taken out of the well; that the tubing, on account of its length and weight and on account of the fluid contained therein and on account of being incased in sand and mud, weighed many tons, and defendant negligently undertook to pull the tubing with two lines instead of three or more; that, with knowledge that the derrick was weak, bent, warped, twisted, out of plumb, and insufficient to withstand the strain of lifting said tubing, and that the use of only two lines instead of three or more would increase the strain upon said derrick, the foreman in charge of the crew carelessly started the motor in the tubing pulling machine and caused the same to race at a violent rate of speed, and carelessly threw in the clutch of the machine, causing a violent jerk upon said lines and a tremendous strain upon said weakened derrick; that, by reason of such carelessness, the derrick collapsed with plaintiff's intestate, inflicting injuries upon him from which he thereafter died.

Defendant's answer admitted the employment of plaintiff's intestate; admitted that he was, at the time of receiving his injuries, working with a crew engaged in pulling tubing and rods from one of its wells; admitted that it had erected a steel derrick over the well, and that it was employing such derrick in a process of pulling the tubing by means of pulleys and blocks in the nature of a block and tackle, connected with a pulling machine. It denied that its derrick was weak, warped, twisted, or otherwise insufficient, and put in issue all charges of negligence, and pleaded that its derrick was standard equipment in general use, which had been regularly inspected, and that such inspection failed to reveal any defects therein, and that the collapse of the derrick was not due to its age, rust, or warped condition, that, if defendant was guilty of the acts of negligence charged in the complaint, the condition of the derrick was known to plaintiff's intestate and the danger thereof appreciated by him, and that, if the methods of performing the work of pulling the tubing constituted negligence, plaintiff's intestate had knowledge thereof and appreciated the danger therefrom, and hence assumed the risk of injury. Defendant further alleged that, if in fact the defendant O. E. Leggett (later dismissed from the action) was guilty of any negligence which caused or contributed to the injury or death of plaintiff's intestate, all risk of injury by reason of the negligence of his fellow servants was assumed by plaintiff's intestate, and that section 7137, Crawford & Moses' Digest of the Statutes of Arkansas, in so far as it purported to abolish the fellow servant rule as to all corporations, regardless of the business in which engaged, was in violation of the Fourteenth Amendment to the Constitution of the United States, and hence void.

At the close of all the evidence, defendant moved for a directed verdict, which motion was denied, and the case was submitted to the jury on instructions to which defendant saved certain exceptions. The jury returned a verdict in favor of plaintiff for $30,000. From the judgment entered thereon, defendant prosecutes this appeal, and asks for a reversal of the judgment on the grounds that (1) the court erred in refusing to direct the jury to return a verdict for defendant; (2) the court erred in refusing instructions requested by defendant, and in giving certain instructions excepted to by defendant.

The complaint charged negligence in two particulars, first, in maintaining a warped, twisted, and weakened derrick; and, second, the act of the gang pusher in pulling the tubing with two lines instead of three.

Defendant was not an insurer of the safety of plaintiff's intestate, nor did it guarantee the safety of the place in which he worked nor the appliances furnished him. Baltimore & P. R. Co. v. Mackey, 157 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624; Washington & G. R. Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 235. It was, however, defendant's duty to exercise ordinary care in furnishing him with a reasonably safe place in which to work and reasonably safe appliances. Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L.Ed. 612; Standard Oil Co. v. De Vries (C.C. A.3) 3 F.(2d) 852; Gray v. Davis (C.C. A.1) 294 F. 57; Beulah Coal Mining Co. v. Verbrugh (C.C.A.8) 292 F. 34; Union Pac. R. Co. v. Marone (C.C.A.8) 246 F. 916; H. D. Williams Cooperage Co. v. Headrick (C.C.A.8) 159 F. 680; Cryder v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 152 F. 417. This duty was a continuing one, which could not be discharged for all time by furnishing in the first instance a reasonably safe place in which to work and reasonably safe tools and appliances for use in such work. The duty of the master in these regards is nondelegable, and whoever performs such duties or functions is to that extent performing the duties of the master, and failure to exercise ordinary care in so doing will render the master liable in the event that injury proximately results from such negligence.

In considering the question of the sufficiency of the evidence to sustain the verdict, we need only to determine whether the evidence, viewed in the light most favorable to the plaintiff, was substantial. Was there substantial evidence going to prove not only the acts of negligence charged, but that such alleged negligence was the proximate cause of plaintiff's intestate's injuries? In an action of this character, the rule res ipsa loquitur cannot be invoked. Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 277, 45 L.Ed. 361; New Orleans & N. E. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Midland Valley R. Co. v. Fulgham (C.C.A.8) 181 F. 91; Shandrew v. Chicago, St. P., M. & O. Ry. Co. (C.C.A.8) 142 F. 320; Latting v. Owasso Mfg. Co. (C.C.A.8) 148 F. 369; Cryder v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 152 F. 417, 419; Kansas City Southern Ry. Co. v. Cook, 100 Ark. 467, 140 S.W. 579. The fact of an accident gives rise to no presumption of negligence on the part of the employer, and the burden of proving such negligence rests upon the plaintiff.

In Patton v. Texas & P. R. Co., supra, the rule in this class of cases is stated as follows:

"The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. Texas & P. R. Co. v. Barrett, 166 U.S. 617, 17 S.Ct. 707, 41 L.Ed. 1136. Second. That in the latter case it is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was."

As to the first grounds of alleged negligence, we have searched the record with great care, and find no evidence that the derrick, as maintained by defendant, excluding as we must the evidence of the accident, was warped, twisted, out of plumb, or in a weakened condition. The derrick was one of standard make and in general use. It had been blown over by a storm in the spring of 1933. The evidence of plaintiff's own witnesses was to the effect that the derrick was repaired after the storm; that one leg of the derrick had been bent, another leg had been sprung, and some other parts were bent. Certain parts were taken out and straightened, while others were straightened while still in place and without being heated. But this testimony is to the effect that, when repaired, the derrick was as straight and plumb as it was before the storm, so that, so far as the eye could observe, there were no twisted parts and no apparent defects. After being straightened up, it was later gone over by employees, and every bolt and nut in the entire steel structure was tightened up. It was, in fact, used in the usual and ordinary way after being repaired for a period of two years prior to this accident, and tubing had been pulled from the well in question ten times. There is no testimony that during that time any defect was found in the derrick, but the testimony stands without dispute that the workmen using it observed nothing wrong with...