Short v. Guy Nall Trucking Co., 41558

• Citation: 442 P.2d 497
• Decision Date: 18 June 1968
• Docket Number: No. 41558,41558
• Parties: H. D. SHORT, Plaintiff in Error, v. GUY NALL TRUCKING CO., Inc., Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 497

442 P.2d 497

1968 OK 92

H. D. SHORT, Plaintiff in Error, v. GUY NALL TRUCKING CO., Inc., Defendant in Error.

No. 41558.

Supreme Court of Oklahoma.

June 18, 1968.

Syllabus by the Court

It is the duty of the trial court on its own motion to properly instruct the jury upon the decisive issues formed by the pleadings and evidence introduced at the trial, and a failure to do so constitutes fundamental error, and this error of the court will be reviewed even though exceptions were not taken.

Appeal from the Superior Court of Seminole County; Bob Aubrey, Trial Judge.

In an action for damages for personal injuries, the jury returned a verdict for defendant in error, defendant below. Plaintiff in error appeals from the order overruling his motion for a new trial. Judgment reversed with directions.

Harry R. Palmer, Jr., Oklahoma City, Horsley, Epton & Culp, Wewoka, by Harry R. Palmer, Jr., Oklahoma City, for plaintiff in error.

H. Corky Bishop, Tulsa, for defendant in error.

IRWIN, Vice Chief Justice.

Plaintiff in error, herein referred to as plaintiff, instituted this action to recover damages a result of an accident allegedly caused by the negligence of defendant in error, referred to as defendant. The jury returned a verdict for defendant and judgment was rendered accordingly. Plaintiff appeals from the order overruling his motion for a new trial.

Plaintiff worked for a drilling company. Defendant was employed by the drilling company to move a drilling rig to a new location. Defendant sent two men and a large truck with an attached cable unit and steel hook to perform the work. After defendant's unit had been used to move the drilling rig to a new location, the unit was used to raise one corner of the rig for the purpose of leveling it. Plaintiff was shoveling dirt under the raised rig when a steel hook attached to defendant's unit broke, struck plaintiff in the head and injured him.

Plaintiff proceeded on the theory that defendant furnished all the equipment to move and level the drilling rig and two men to operate the equipment; and that defendant knew, or should have known, that the equipment furnished was inadequate to do the work which it contracted to do and failed to properly inspect the equipment for safety and capacity before using such equipment.

Several defenses were asserted by defendant, among these being: That plaintiff had settled and released his claim; that plaintiff voluntarily assumed the risk of danger connected with his work; that plaintiff was guilty of contributory negligence; that its (defendant's) two employees, under the fellow-servant or loaned-servant doctrine, became the employees of plaintiff's employer and plaintiff could not recover for their negligence; and that it did properly inspect the equipment for safety and capacity to do the work and that the equipment used was the same type generally employed for this kind of work.

The record conclusively shows that the steel hook attached to defendant's unit broke; that a portion of the steel hook struck plaintiff; and that plaintiff sustained injuries. The jury was instructed that if plaintiff and the defendant's two employees, were working together as employees of the same employer at the time of the accident, the verdict should be for defendant. No proper exceptions were taken to this instruction. The jury was also...