Prickett v. Sulzberger & Sons Co.

• Decision Date: 28 March 1916
• Docket Number: Case Number: 6087
• Citation: 57 Okla. 567,1916 OK 387,157 P. 356
• Court: Oklahoma Supreme Court
• Parties: PRICKETT v. SULZBERGER & SONS CO.

1916 OK 387

157 P. 356

57 Okla. 567

PRICKETT v. SULZBERGER & SONS CO.

Case Number: 6087

Supreme Court of Oklahoma

Decided: March 28, 1916

Syllabus

¶0 1. EVIDENCE--Res Gestae--Statements. In an action for personal injuries, resulting in the death of a servant, from falling down an elevator shaft of the master in the nighttime, testimony of eye witnesses to the accident that just as he was about to step off he stated to deceased, "Be sure it is there," and deceased replied, "Yes; it is here," is competent as a part of the res gestae indicating the impression on the mind of the deceased at the moment of stepping off that the elevator was there.

2. EVIDENCE--Opinion Evidence--Competency of Expert. The testimony of a skilled electrician as to the diffusion of light from lamps similar to those shown to have been used in lighting the vicinity of an elevator shaft where the servant fell and was killed, and as to the shadow or other effects produced thereby, due to the kind, condition, and location, is competent, on the question of proper or sufficient lighting of the place where the injury occurred.

3. MASTER AND SERVANT--Injuries to Servant--Fellow Servants--Concurring Negligence. The master is liable for injuries due to the concurring negligence of himself and a fellow servant in cases where the injury would probably not have occurred but for the negligence of the master.

4. NEGLIGENCE--"Proximate Cause." Strictly defined, an act is the proximate cause of an event when in the natural order of things, and under the particular circumstances surrounding it, such an act would naturally produce that event.

5. MASTER AND SERVANT--Injuries to Servant--Actions- -Safe Place to Work--Question for Jury. Where there is an apparent choice of routes between two points, and no rule or recognition requiring the longer route to be used, instead of the shorter, which leads across an elevator, usually left at night at a point where it might be, and frequently is, used to cross an elevator shaft, as a means of access to a point where the servant has duties to perform, and where it appears that others use it similarly, and that it had been so used for several months, the question as to whether notice of such use will be implied on the part of the master, and consent thereto likewise implied, is for the jury, even though it must follow that the master would owe the duty of making such passage and use reasonably safe by adequate lighting.

6. SAME--Appliances and Place to Work--Duty of Master. It is the undelegable duty of the master to exercise ordinary care to provide the servant a reasonably safe place to work, reasonably safe tools and materials with which to work, and reasonably safe and competent fellow servants with whom to work, and a failure in one or more of these duties will subject the master to liability for all damages proximately resulting therefrom, through injuries to the servant, even though the negligence of the fellow servant should contribute therewith to the injury, if the injury would probably not have occurred but for the negligence of the master in the performance of his duty.

7. SAME--Place to Work--Lighting. Where a servant is required to work at night in a place or required to pass in the nighttime from one point in the premises where employed to another, it is the duty of the master to sufficiently light the locality of his work and the course of his passage to enable him to discover and avoid danger due to conditions that may be variable at different times.

8. NEGLIGENCE--Actions--Question of law or Fact. What is or what is not negligence is ordinarily a question for the jury, and not for the court. Where the standard of duty is not fixed, but variable, and shifts with the circumstances of the case, it is incapable of being determined as a matter of law, and, where there is sufficient evidence, it must be submitted to the jury to determine whether the duty of the master has been complied with. On the other hand, when the standard and measure of duty is defined by law, and is the same under all circumstances, its omission is negligence, and may be so declared by the court. It is only in cases where the facts are such that all reasonable men must draw the same conclusions that the question of negligence or the want of negligence becomes one of law for the court, and then only when no recovery can be had upon any view which can properly be taken of the facts which the evidence tends to establish.

9. SAME. Negligence is so much a mixed question of law and fact--principally fact--that courts are seldom justified in saying that all reasonable men will agree with them on the question of whether a given state of facts constitutes the exercise of ordinary care.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Ethel Prickett against the Sulzberger & Sons Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial ordered.

F. L. Boynton and Nicholas & Lyle, for plaintiff in error.

Ames, Chambers, Lowe & Richardson and Bennett & Pope, for defendant in error.

ROBBERTS, C.

¶1 This action was brought by Ethel Prickett against Sulzberger & Sons Company for damages alleged to have been sustained by reason of the death of her husband, Ray Prickett, because of the negligence of the defendant, by whom the deceased was employed at the time of his injuries.

¶2 The plaintiff alleges, in substance, that she was the wife of the deceased, who was in the employ of the defendant on or about September 25, 1912, when he sustained injuries by falling down an elevator shaft, from which injuries he died on or about October 4, 1912, leaving surviving him his widow and two children. She sets out in detail the facts alleged to give her a cause of action, and sets forth some 14 different acts or omissions of the defendant in connection with the service of the deceased, his surroundings, and fellow servants, which may be briefly condensed into an allegation that the defendant did not exercise ordinary care to furnish the deceased a reasonably safe place in which to work and reasonably safe fellow servants with whom to work, and to properly guard the deceased against accident by the promulgation of such rules as would have prevented the injury, which is alleged to have proximately resulted from these several causes.

¶3 Trial was had to a jury, and at the conclusion of the plaintiff's evidence a demurrer thereto was sustained by the court, and judgment rendered dismissing the action. Motion for a new trial was overruled, exceptions saved, and plaintiff appealed.

¶4 The ground on which the demurrer to the evidence was sustained was that the evidence was not sufficient to entitle the plaintiff to recover. The plaintiff urges that the court erred in this regard, and that it erred also in refusing to admit certain material testimony offered by her. It is practically conceded that the evidence admitted supported the allegations of the petition as to the employment of the deceased by the defendant, as to his sustaining fatal injuries at the time claimed, as to his earning capacity, as to the respective ages of the deceased and of the widow and children, the expectancy of life of the deceased and his wife, and their joint and average expectancies, and that no administration had issued on his estate. The remaining questions relate to whether there was any evidence admitted reasonably tending to show negligence on the part of the defendant, and whether reversible error resulted from excluding the offered evidence.

¶5 It appears from the record that the defendant maintained its business in two principal buildings, standing close together, connected at only one point above the ground; the connection consisting of a bridge running from the fifth floor of one building across the intervening alley into the other building at a point not corresponding with any floor of the latter building, but continuing on into and through a vestibule about 12 or 15 feet to an elevator shaft. This vestibule was inclosed in brick, and ran from the ground to the top of the building, and be sides the elevator shaft iron stairways ran up from story to story. The shaft and elevator were principally used for transferring packinghouse products from floor to floor, in the buildings where located, and transferring by means of the bridge connecting the elevator shaft with the floor of the building across the alley or open space to the other building.

¶6 The elevator was operated by an electric motor, not in the building in which the elevator itself was located, but in the building across the alleyway, and on the floor above that from which the bridge extended into the other building. It was one of the duties of the elevator boy, when leaving the elevator at night, to cross the bridge to the opposite building, ascend the intervening flight of stairs, and switch off the motor before going home, as the elevator was not operated at night. There was some evidence tending to show that the elevator boy most frequently left the elevator standing at the bridge when leaving it at his quitting time in the evening. There was at least some evidence from which a jury might reasonably have found that he did so. There was an iron bar by which the elevator doors were fastened shut from the shaft side and a sign on the doors "Keep Shut"; also a small hand hole through the wire netting in the elevator door at the bridge, but none at any other elevator landing. This hole was for the purpose of introducing the fingers, raising the bar, and thus enabling one to open the doors at the bridge.

¶7 On the matter of the use of the elevator the witness Johnson testified:

"I have seen the deceased cross the elevator between the bridge and the opposite deck four or five times."

¶8 Greer testified:

"I have seen the elevator at the bridge when the elevator boy left it there three or more times. He would leave it there and go across the bridge to shut off the motor

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