Shell Pipe Line Corp. v. Curtis, 36689

Citation1955 OK 212,287 P.2d 681
Decision Date12 July 1955
Docket NumberNo. 36689,36689
PartiesSHELL PIPE LINE CORPORATION, Plaintiff in Error, v. Henry A. CURTIS, Defendant in Error.
CourtSupreme Court of Oklahoma

Syllabus by the Court

1. The credibility of witnesses and the weight and value of their testimony, in actions of legal cognizance, are questions exclusively for the jury to pass upon.

2. It is a well settled rule in this state that evidence is sufficient to sustain a judgment if there is any evidence reasonably tending to prove, either directly or immediately, or by permissive inference, the essential facts to sustain the verdict and judgment rendered thereon.

3. Where one owes a nondelegable duty to another, he cannot escape the obligation of performing such duty by engaging for its performance through or by a contractor, and in such cases the rule that an employer is not liable for the negligence of an independent contractor has no application.

4. Newly discovered evidence to impeach or discredit witnesses is not grounds for new trial.

Appeal from the District Court of Paine County; Robert L. Hert, Judge.

Action for damages for personal injuries wherein plaintiff had judgment and defendant appeals. Affirmed.

A. R. Swank, A. R. Swank, Jr., Chilton Swank, Stillwater, for plaintiff in error.

James M. Springer, Jr., Stillwater, for defendant in error.

CORN, Justice.

Plaintiff brought this action seeking to recover damages for personal injuries allegedly sustained by reason of defendant's negligence. The case heretofore has been considered by this court, and a decision rendered reversing the trial court's order and judgment sustaining defendant's demurrer to plaintiff's amended petition. See Curtis v. Shell Pipe Line Corp., Okl., 265 P.2d 488.

The amended petition, upon which the case was tried, alleged plaintiff's ownership of a 50 acre farm principally devoted to pasturing cattle; defendant owned an oil and gas pipe line traversing plaintiff's property (north and south) under a previously executed right of way agreement; about December 18, 1951, defendant opened a ditch approximately 4 feet wide and 3 feet deep exposing such pipe line, which was permitted to remain open until January 22, 1952, when plaintiff's action was filed. The morning of December 25, 1951, plaintiff discovered one of his cows had fallen into, and was unable to extricate herself from, this ditch. He enlisted aid of a son and son-in-law in order to remove the animal therefrom. Plaintiff was down in the ditch attempting to raise the animal, in a customary and proper manner; the cow was struggling during their efforts and plaintiff was thrown violently against the wall of the ditch and thereby received a ruptured intervertebral disc, such injury being of a permanent, serious and painful nature. Defendant was charged with negligence in that it knew, or should have known, plaintiff's stock had access to and might fall into the ditch; in leaving the ditch open and unprotected; that such acts of negligence were the proximate cause of this animal falling into the ditch and plaintiff being injured.

Defendant's amended answer made general and specific denial of the matters alleged in the petition, and further plead that if defendant, its agents or employees were negligent the plaintiff's negligence so combined with defendant's acts as to be proximate cause of injury, and amounted to contributory negligence on plaintiff's part.

Plaintiff replied by general denial and the issues thus formed were tried to a jury. After hearing all the evidence, and under appropriate instructions from the trial court, as to which no claim of error is made, the jury returned a verdict in plaintiff's favor for $15,000, upon which the judgment appealed from was rendered. The various specifications of error urged as grounds for reversal of this judgment are presented under five propositions, all but one of which attack the sufficiency of the evidence to support the jury's verdict.

The first contention urges the insufficiency of the evidence to support the verdict and judgment. Plaintiff's evidence disclosed his discovery of the cow in defendant's ditch, that he sought assistance in attempting to extricate her therefrom, and that he received the injury complained of in the manner alleged. There was evidence indicating defendant's knowledge that plaintiff's land was used as a pasture, and that this ditch remained unbarricaded from the time it was dug until this action was begun. The evidence in regard to these matters was corroborated by the testimony of plaintiff's son and son-in-law. There was medical testimony tending to establish the nature and extent of his injury, as well as subsequent loss of earning capacity, pain and suffering, and existence of permanent partial disability resulting from the injury.

The defendant's argument is that the physical facts surrounding this occurrence, as reflected by the evidence, are sufficient to disclose the utter impossibility of any accident having occurred in the manner testified to by plaintiff, and that analysis of the evidence clearly indicates nothing more than that plaintiff's entire case was and is a total fabrication. No purpose could be served by discussion of each of the numerous circumstances, which are pointed to as clearly demonstrating the fantastic nature of plaintiff's claim as opposed to the validity of defendant's argument.

The probability or improbability of the occurrence alleged, and the weight and credibility to be given to the testimony of plaintiff's witnesses, were matters singularly within the province of the jury. Poston v. Alexander, 191 Okl. 653, 132 P.2d 343; Oklahoma Ry. Co. v. Benson, 208 Okl. 588, 257 P.2d 1084. Defendant's argument that the evidence showed the ditch to be too narrow and too shallow for the accident to have happened as testified to is based entirely upon defendant's interpretation of the evidence. And, this is true also as to the argument plaintiff could not have been injured in the manner testified to, because the narrowness of the ditch made it impossible to get down into the ditch next to the animal. There was evidence from which the jury could conclude the ditch was 2 feet wide or 4 feet wide, and that it was 2 feet deep, or 3 1/2 to 4 feet deep. And, the fact plaintiff's testimony was corroborated by his relatives was simply a circumstance to be considered by the jury in gauging the weight and credibility of their testimony.

The conflict in the evidence relative to the width and depth of the ditch was such that reasonable men might differ as to the reasonable inferences and proper conclusions to be drawn therefrom. The matter properly was left for the jury to determine. There is competent evidence to support the findings of the jury, and such findings will not be disturbed on appeal. Grand Distributing Co. v. Adams, 206 Okl. 451, 244 P.2d 571.

The same rules are applicable to the argument that the evidence fails to sustain the finding plaintiff suffered a ruptured intervertebral disc in this accident. The testimony respecting the nature and extent of plaintiff's injury was in sharp conflict. Defendant's evidence was directed toward showing plaintiff suffered no injury, testified falsely, and in truth was gainfully employed during the period he claimed to have been unable to work. The jury evidently did not choose to accept such evidence to the exclusion of the evidence introduced by plaintiff. In view of the conflict in the evidence this court will neither review the evidence to ascertain the weight thereof nor disturb the verdict of a...

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15 cases
  • Wathor v. Mutual Assur. Adm'rs, Inc., 97,696.
    • United States
    • Supreme Court of Oklahoma
    • January 20, 2004
    ...of an independent contractor will not be applied. Braden v. Hendricks, 1985 OK 14, ¶ 19, 695 P.2d 1343, 1352, n. 26; Shell Pipe Line Corp. v. Curtis, 1955 OK 212, ¶ 13, 287 P.2d 681, 685; Allied Hotels, Limited v. Barden, 1964 OK 16, ¶ 15, 389 P.2d 968, 971. In Oklahoma Ry. Co. v. Boyd, 192......
  • Doug v. Mutual Assurance Administrators, Inc., 97,696
    • United States
    • Supreme Court of Oklahoma
    • January 21, 2003
    ...of an independent contractor will not be applied. Braden v. Hendricks, 1985 OK 14, ¶ 19, 695 P.2d 1343, 1352, n. 26; Shell Pipe Line Corp. v. Curtis, 1955 OK 212, ¶ 13, 287 P.2d 681, 685; Allied Hotels, Limited v. Barden, 1964 OK 16, ¶ 15, 389 P.2d 968, 971. In Oklahoma Ry. Co. v. Boyd, 192......
  • Graham v. Keuchel, 72586
    • United States
    • Supreme Court of Oklahoma
    • January 26, 1993
    ...supplied.]73 The mother cites Jack Cooper Transport Company, Inc. v. Griffin, Okl., 356 P.2d 748, 754 (1960); Shell Pipe Line Corporation v. Curtis, Okl., 287 P.2d 681, 685 (1955) and Minnetonka Oil Co. v. Haviland, 55 Okl. 43, 155 P. 217, 218-219 (1916).74 Miller v. Price, 168 Okl. 452, 33......
  • Bouziden v. Alfalfa Elec. Co-op., Inc., 90,622.
    • United States
    • Supreme Court of Oklahoma
    • June 27, 2000
    ...tort rule expressed in Minnetonka Oil Co. v. Haviland, 55 Okla. 43, 155 P. 217 (1916), and its progeny Shell Pipe Line Corp. v. Curtis, 1955 OK 212, 287 P.2d 681, and Cities Service Gas Company v. Christian, 1957 OK 247, 316 P.2d 1113, 1115. While recognizing that these cases involved claim......
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