Phillips Petroleum Co. v. Myers

• Decision Date: 03 May 1949
• Docket Number: 32337.
• Parties: PHILLIPS PETROLEUM CO. et al. v. MYERS.
• Court: Oklahoma Supreme Court

210 P.2d 944

202 Okla. 151, 1949 OK 93

PHILLIPS PETROLEUM CO. et al. v. MYERS.

No. 32337.

Supreme Court of Oklahoma

May 3, 1949

Rehearing Denied Nov. 1, 1949.

Jeanette Myers, a minor, by her father and legal guardian, Ruie Myers sued Phillips Petroleum Company, a corporation, and Virgil Hardcastle, for injuries sustained by plaintiff when she fell into a ditch.

The District Court of Seminole County, Bob Howell, J., rendered judgment adverse to defendants, and defendants appealed.

The Supreme Court, O'Neal, J., affirmed the judgment holding, inter alia, that negligence of defendants and proximate cause were for jury, and that $25,000 damages was not excessive under the evidence.

Gibson and Halley, J., dissented.

In action for injuries sustained by minor, negligence of defendant and proximate cause were for jury under evidence that minor who had been walking on path on land occupied by minor's parents as tenants, which path was commonly used by minor's family, fell into ditch when attempting to cross ditch which defendant had dug in order to remove defendant's pipe line which ran across the land, and along the sides of which loose earth and rock had been placed which gave way under minor's feet causing minor to fall.

In action for injuries, question of negligence and of proximate cause of injury are generally questions of fact for jury.

Syllabus by the Court.

1. Before evidence of a purported compromise agreement is admissible as a defense, over timely objection, the compromise agreement must be specifically pleaded.

2. Before evidence tending to impeach a witness is admissible for that purpose, over timely objection, a proper foundation must be laid.

3. Where a minor child sues for injuries sustained by falling into an open ditch and the proof is that defendant opened a ditch 2 to 2 1/2 feet deep and 1 to 1 1/2 feet wide across the premises of the residence of plaintiff's father and mother and across a path commonly used by the family, and placed the earth and rock excavated from the ditch along each side thereof so as to make an embankment of loose earth and rock from 1 1/2 to 2 feet high on each side of the ditch, and the same remained in that condition for 10 days, the question of whether defendant used the care and caution that an ordinarily prudent person would have exercised under the same or similar circumstances is for the jury.

4. Under the circumstances stated in paragraph 3 hereof, it was not error to refuse an instruction which would limit the duty of defendant to that of refraining from creating or permitting to exist hidden dangers, traps snares, pitfalls, and other latent dangerous conditions.

5. In an action for damages for personal injuries, where the petition states a cause of action and there is evidence, though contradicted, which reasonably tends to prove all the material allegations of the petition, it is not error to overrule a demurrer to plaintiff's evidence and deny a motion for a directed verdict for defendants.

6. The court did not err in refusing defendant's application during the trial to require plaintiff to submit to medical or surgical examination.

7. This court cannot review the question of alleged misconduct of counsel for plaintiff in argument to the jury unless an objection is seasonably made and exceptions properly taken.

8. In an action for damages for personal injuries, the question of negligence and the question of proximate cause of the jury are generally questions of fact for the jury.

Don Emery, Rayburn, L. Foster, R. B. F. Hummer, D. E. Hodges, Bartlesville, Pliney S. Frye, Wewoka, for plaintiffs in error.

Homer H. Bishop, Seminole, Hugh M. Sandlin, Holdenville, O. A. Cargill, James R. Eagleton, O. A. Cargill, Jr., Oklahoma City, for defendant in error.

O'NEAL, Justice.

This is an appeal from a judgment for damages for personal injuries in an action by defendant in error, Jeanette Myers, a minor, by her father and legal guardian, against plaintiffs in error, Phillips Petroleum Company and Virgil Hardcastle.

Plaintiff alleged that on and prior to January 7, 1943, defendant Phillips Petroleum Company owned and operated a pipe line which extended across the premises of which plaintiff's father was a tenant and upon which he and his family resided; the pipe line ran through the yard of the premises between the house and barn lot and between the house and a roadway which led to the public highway to the west of the house; the pipe line crossed two well-defined paths through the yard, one leading to the roadway and the other to the barn lot; these paths were continuously used by the Myers family; the yard extending from the house to the barn was a playground used by the children, including the plaintiff; the pipe line crossed the path leading to the roadway about 30 feet from the house, and crossed the path leading to the barn about 50 feet from the house; on December 28, 1942, defendant started removal of the pipe line by digging a ditch to take up the pipe; defendant Hardcastle, employee of defendant Phillips Petroleum Company, was the foreman and superintended the work and participated in the digging of the ditch; the defendants, through their agent, orally agreed with Mr. Myers that the pipe line would be removed and the ditch refilled within one day; on that date the ditch was opened in the yard across the path, about 2 1/2 feet deep and 1 1/2 to 2 feet wide, exposing the pipe line in the bottom of the ditch; at a point about 50 feet south of the kitchen door and across the foot path leading to the barn, defendants caused to be erected a bank of earth on each side of the ditch, composed of loose dirt and rock excavated from the ditch, approximately 2 feet high, parallel to and extending along the ditch on each side thereof, thus creating a dangerous condition consisting of an open pit from the top of the loose dirt and rock to the steel pipe, a distance of 4 feet or more, directly in the pathway; the pit remained open and unguarded for a period of 18 days; on January 7, 1943, plaintiff, Jeanette Myers, as was her custom, had been playing in the yard and while returning to the house along the pathway and attempting to cross, as the result of the loose rock and dirt under her feet giving way, fell head downward into the ditch so that her head crashed against the iron pipe, resulting in serious, painful, and permanent injuries.

Plaintiff's fall into the ditch and her resulting injury were proximately caused by the joint and concurring negligence of defendants in: Hardcastle's erecting an insecure mound of earth, two feet or more high, across the pathway on each side of the ditch; the omission of defendants to provide a reasonably safe and proper means of crossing the ditch, and in creating the mound of earth so that it was insecure to footing and dangerous to children using the pathway; and the omission of defendants to erect proper barricades and guards.

Defendants, and each of them, knew, or with exercise of ordinary care should have known, that the creation and maintenance of the hazard was and would be unsafe to the minor children.

Phillips Petroleum Company denied generally and alleged affirmatively that in removing the pipe line it was acting under a right-of-way contract with the owner of the premises, by the terms of which the right to lay, maintain, alter, repair, operate, and remove lines for transporting oil, gas, and water over and upon the premises involved was granted to it; that the contract was of record in the county clerk's office; and a copy of the contract was set forth in the instrument attached to the answer. The defendant further alleged that all its operations in removing the pipe line were conducted in a good and workmanlike manner and under the terms and pursuant to the right-of-way contract.

The defendant alleged that after the pipe line ditch was opened, the pipe removed, and the ditch prepared for a backfill, plaintiff's father and mother requested defendants to withhold backfilling the ditch through the yard until defendant had removed the pipe line and refilled the ditch through the adjoining field on the land; that the request was that the father, Ruie Myers, wanted to plow the field. Defendants, pursuant to the request, removed the pipe line and refilled the ditch through the fields before backfilling the ditch through the yard.

Defendant Hardcastle answered by general denial.

Trial to a jury resulted in a verdict for plaintiff against both defendants, in the sum of $25,000, for which amount judgment was rendered. Defendants appeal.

It is contended that the court erred in refusing to admit in evidence an order of the County Court of Hughes County In the Matter of the Guardianship of Jeanette Myers, a minor, in the nature of instruction by the county court to the guardian relative to the claim against Phillips Petroleum Company. Therein it was recited:

'* * * Court having heard testimony of witnesses, and being fully advised in the premises, finds that said minor was injured on or about January 7, 1943 under circumstances that indicate that such injuries may have been proximately caused by the fault of said Phillips Petroleum Company. The Court further finds that the sum of Three Hundred Dollars ($300.00) would be fair, just and reasonable compensation for all claims against said company arising out of or in any way pertaining to said injuries sustained by said minor.'

The county court, by order, granted Ruie Myers guardian of Jeanette Myers, a minor, permission to institute suit against Phillips Petroleum Company, and the county court approved and directed the guardian to seek to recover by suit or compromise the sum of $300 for all claims and demands, past, present or future, arising out of or...