Sallisaw Cotton Oil Co. v. Holland

• Decision Date: 16 November 1915
• Docket Number: Case Number: 5107
• Citation: 156 P. 174,1915 OK 920,56 Okla. 428
• Parties: SALLISAW COTTON OIL CO. v. HOLLAND.
• Court: Oklahoma Supreme Court

1915 OK 920

156 P. 174

56 Okla. 428

SALLISAW COTTON OIL CO. v. HOLLAND.

Case Number: 5107

Supreme Court of Oklahoma

Decided: November 16, 1915

Syllabus

¶0 1. MASTER AND SERVANT--Injury to Servant--Safeguarding Machinery--Proof. In order to sustain a recovery for injuries under section 3746, Rev. Laws 1910, requiring the employer to guard dangerous machinery, it must be shown that the person injured was injured while employed and laboring in a manufacturing establishment, and while in the performance of a duty, whether ordinary or general, exceptional or occasional, and while acting within the scope of such employment.

2. SAME--Duty of Master--Extent. Section 3746, Rev. Laws 1910, requires only such machinery to be properly guarded as can be so guarded without rendering such machinery useless.

3. SAME--Injury to Servant--Causal Connection--Burden of Proof. In an action for damages, predicated upon negligence, the burden is upon the plaintiff to show by a preponderance of the evidence that there is causal connection between the negligence averred and the injury suffered.

4. DAMAGES--Injury to Servant--Causal Connection--Burden of Proof. In an action for recovery of damages for negligence, if it be shown by the evidence there was negligence, there can be no recovery, unless the evidence, by a preponderance, also shows causal connection between the negligence proved and the damages sustained.

5. SAME--Allegation and Proof--Direction of Verdict. In an action for damages for negligence, if the evidence fails to show causal connection between the negligence averred and the injuries suffered, the court, upon proper request, should direct a verdict for the defendant.

6. MASTER AND SERVANT--Injury to Servant--Negligence--Sufficiency of Evidence. Evidence examined, and found not to sustain the judgment of the trial court.

Error from District Court, Sequoyah County; John H. Pitchford, Judge.

Action by W. A. Holland against the Sallisaw Cotton Oil Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Kyle & McCombs and Read & McDonough, for plaintiff in error

Curtis & Pitchford, for defendant in error

COLLIER, C.

¶1 This is an action brought by defendant in error against plaintiff in error to recover for personal injuries. Hereinafter the parties will be designated as they were in the trial court.

¶2 The parts of the petition in this cause, omitting caption and signatures and affidavits, which are material to a proper review of the case, read:

"(2) That on or about the 11th day of November, 1910, plaintiff was delivering at defendant''s place of business a load of cotton seed, the property of said defendant, by removing same from a wagon box or bed into an open trough or box, which said trough or box contained a screw or cylinder, so constructed that when in motion it would convey the seed from the place or places where persons unloading them into defendant''s buildings prepared for the purpose of receiving and storing same.

"(3) That on the date last above mentioned said defendant had carelessly and negligently failed to construct a cover or lid for such trough or box, or take such other precaution as was necessary to protect its employees and the public, and its customers, from injury by reason of the motion of said screw or cylinder, but carelessly, willfully and negligently left the same exposed.

"(4) That on the last-named date this plaintiff, while unloading cotton seed into said box or trough, slipped and fell from his wagon into said trough and upon said cylinder or screw, thereby sustaining a broken leg and other serious injuries and bruises.

"(6) That his said injuries were not received or brought about by carelessness or negligence of plaintiff, and could not have been reasonably apprehended by an ordinarily careful and prudent man."

¶3 Defendant moved the court to require plaintiff to make the petition more definite and certain, which motion was overruled and exception duly saved. Thereupon defendant filed its answer, denying each and every material allegation of the petition and setting up contributory negligence and assumption of risk on the part of plaintiff.

¶4 The material part of the evidence of plaintiff is as follows: That on November 16, 1910, he brought a load of cotton to Sallisaw to the gin to be ginned and baled; that after the cotton was ginned he got the cotton seed into his wagon and carried it up to the oil mill and sold it; that after he sold said seed, he drove from the scales around to the conveyor to unload same into the conveyor; that the conveyor was built along the building; that the conveyor was a long box, with a conveyor or augur therein; that it conveyed the seed out into a room that was on the right; that the conveyor was not covered; that there was nothing in the box about the screw of the conveyor to prevent anything getting down to it; that he drove up there and threw his lines; that he did not know what he did with his lines; that he could not remember; that he turned the team a little away from the conveyor, and there was no scoop or seed fork that he could reach from the wagon, as there had been before; that he never had occasion to get out of the wagon before, because there was always a scoop or fork where he could reach it; that there were two other wagons in front of him unloading seed when he drove up; that he stopped there, and the man said, "Do you want to unload?" and he stopped there and waited; that he stepped out at the end; that after he waited awhile he then drove up by the side of the conveyor to unload; that he started to get out of the wagon and get a scoop, and after that he did not know that he undertook to get out, and the next thing he knew he was in the conveyor; that he did not know how he got there; that it caught his left foot and drew him into the conveyor and injured him.

¶5 On cross-examination he testified that he had lived in that section for three years; that in 1909 he sold a part of his cotton seed and carried it to the oil mill; that he could not tell how many times he had been to the oil mill before; that he had been there several times; that he had delivered cotton seed to the same conveyor several times; that, if there had been a top to the conveyer, it would have had to be raised to throw the seed in; that the seed could not be thrown into the conveyor if it had a cover on it; that he knew that the box or conveyor had no covering on top of it; that he had been there several times before and saw it; that it was in the same condition every time that he saw it, and that he thought he left the sideboard next to the conveyor off; that the way he had usually been doing was to get a scoop without getting out of the wagon, because there would be one either directly behind his wagon, or where he could reach it from his wagon; that there was a scoop or fork hanging just in front of his team; that in getting out of the wagon he started to get out just like any one else would; that he put his feet over the side of the board and intended to get out on the front wheel; that his team were facing south; that the conveyor was on the west side of it; that he started over the west side of the wagon; that he did not remember whether he got on the wheel; that he started out of the wagon, and the next thing he knew he was in the conveyor; that he did not remember how he got there; that he did not know whether he fell or was thrown into the conveyor; that he was in there, and that is all he knew; that, as he remembered, he intended to get on the wheel; that he did not know whether he slipped or not; that, of course, he would have to get on the wheel to get on the ground; that, if he had so undertaken, he could have stepped on the step on the bed, but that he was in a hurry to get unloaded and get away, and undertook to get out the nearest way; that he imagined he got over the fore wheel; that he could not say whether he had his foot on the tire of the wheel or not; that, as stated to Dr. Hudson, he thought he slipped off the wheel into the conveyor; that he thought he had his left foot on the wheel, but that after he got to studying about it, and seeing the position he would have to be in at the time, he could not possibly have had his left foot on the wheel, because his face was towards the building, and, of course, his left foot, being in his way, would have had to be twisted around to get his left foot there; that he did not get off the opposite side of the wagon, because the extra sideboard was on that side; that he could have gotten off on the opposite side by climbing over the sideboard; that, if he had gotten out of the rear end of the wagon, he would not have fallen into the conveyor, unless he had been thrown in, and there was no one there to throw him in; that he could have gotten out in the back of the wagon in safety and without getting into the conveyor; that there was a high sideboard on the front and back end of the wagon bed; that he could have climbed over the front of the wagon by climbing over that high sideboard and getting right over on the mules, being just as liable to fall between or under the mules as any way; that he saw the machinery uncovered there and in operation, and, seeing that machinery, undertook to climb over next to that machinery and get down that way; that there was plenty of room so he could have gotten down between the box and the wagon; that he might have rubbed against the box, but there was plenty of room to get down there; that he could not have fallen from any position that he was in in getting down; that he could have gotten down without being thrown into the conveyor; that, if he had gotten down himself, he could have gotten down on the ground in perfect safety without falling into the conveyor; that he did not know what caused him to fall; that he did not know whether his mules jumped or not when he started to get out; the mules were not wild mules; one of them was afraid of...