St. Louis & S. F. Ry. Co. v. Sears
| Decision Date | 04 June 1935 |
| Docket Number | 24717. |
| Parties | ST. LOUIS & S. F. RY. CO. v. SEARS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 17, 1935.
Syllabus by the Court.
1. An employee ordinarily assumes the risks in using a simple or common tool which is defective; but where he complains of the defect, and the employer promises to remedy it, the employer assumes the risk pending the fulfillment of the promise.
2. It is not necessary for the employee to assert expressly that he makes the complaint because of danger to himself. The fact that he complains is sufficient, unless the circumstances justify the employer in believing that the element of danger is waived.
3. Where the employer, instead of promising to remedy the defect immediately, promises to do so on the happening of a certain event in the future, he assumes the risk pending the fulfillment of the promise.
4. Whether plaintiff assumed the risk in the present case was a question of fact for the jury.
5. "Contributory negligence" and "assumption of risk" are not synonymous. The defenses of each are separate and distinct. "Contributory negligence" involves the notion of some fault or breach of duty on the part of the employee, while "assumption of risk" may be free from any suggestion of fault or negligence on the part of the employee.
Appeal from District Court, Hughes County; Geo. C. Crump, Judge.
Action by Raymond S. Sears against the St. Louis & San Francisco Railway Company for personal injuries. Judgment for plaintiff for $12,000, and defendant appeals.
Affirmed.
Rehearing denied; GIBSON, J., dissenting.
E. T Miller, of St. Louis, Mo., and Cruce & Franklin and G. W Satterfield, all of Oklahoma City, for plaintiff in error.
O. S Huser, of Holdenville, for defendant in error.
The parties to this action will be referred to as plaintiff and defendant, as they appeared in the court below.
Plaintiff alleged that on August 17, 1931, he was an employee of the defendant, in that he was performing work on an "extra gang," and without negligence or fault on his part was by the negligence of the defendant, seriously and permanently injured. That in performing said work he was obliged to use a pick, which was in bad repair, worn, dull, and blunt, and that he was not furnished with a tool or instrument known as "tie tongs" by said defendant, and by the use thereof in driving said pick into a cross-tie for the purpose of pulling same under the rails and track of defendant, the pick gave way causing plaintiff to lose his balance, throwing him backward with great force and violence, which wrenched and twisted the spine and the nerves of plaintiff's left arm and shoulder, causing a total paralysis of said shoulder and arm, and partially paralyzing plaintiff's body on the left side. Plaintiff alleged it was the duty of the defendant to exercise reasonable care in providing a reasonably safe place for him to work and to provide him with safe, suitable, and proper tools, and that said pick was not a suitable and proper tool for use in such work. Plaintiff further alleged the usual and necessary grounds in order to recover, which are not necessary here to relate.
Defendant answered by a general denial, and further answered that if plaintiff was injured he was guilty of contributory negligence and that same was not attributable to it. Defendant answered by way of defense that plaintiff was an employee of the defendant, and the said injury to said plaintiff, if any occurred, was the result of the ordinary dangers incident to and arising from his employment, and that said danger was assumed by him; to which answer the plaintiff filed a reply of general denial.
The defendant, in presenting its specifications of error, offers its first proposition as follows: "The verdict of the jury is not supported by sufficient evidence, and the court should have directed a verdict in favor of this defendant."
The evidence of the plaintiff and his fellow workers, Lawyer, Weaver, and Long, was to the effect that in August, 1931, they were all employed as laborers by the defendant putting in cross-ties and surfacing its track south of Holdenville, and that they were furnished picks and shovels to do the work. All of them, including one Bagwell, testified, in substance, that a pick was not a safe, suitable, and proper tool to use in pulling in cross-ties, and that the safe, suitable, and proper tool for pulling in cross-ties was tie tongs; that there were no tie tongs available to do this work; and they were forced by the defendant to use picks.
Plaintiff testified that he complained to one John Reeder, who was foreman for defendant on the gang, that the pick furnished to him by the defendant to do the work was in a bad state of repair, and was dull, badly worn, and would not hold; that the complaint was made a day or two before and on the day he was hurt. The foreman instructed him to go ahead and use it a few days until he could get some good picks and tie tongs. Lawyer, Weaver, and Long testified that they heard the plaintiff complain to the foreman on Saturday before and on the day of the accident, and the foreman informed the plaintiff to go ahead and use the pick for a few days until the supply train would arrive.
Defendant rebutted this evidence by the testimony of one Bennie Thompson, who was plaintiff's colaborer during the entire day of August 17, 1931, and testified that he heard no complaint from plaintiff about the pick. The foreman, John Reeder, testified that the plaintiff made no complaint to him about the pick, and he made no promise of any kind to the plaintiff with reference to same. Defendant introduced a statement, prepared by defendant's claim agent but signed by plaintiff, which to some extent controverted plaintiff's oral testimony.
Plaintiff's witnesses, giving their experiences of several years as laborers, testified that tie tongs are the safe, suitable, and proper tools in replacing cross-ties. Defendant's witness, John Reeder, testified that his employer had him instruct all of his men in replacing ties to use tie tongs.
Other evidence introduced in the trial is not so hotly contested as the above, except that defendant asserts that the verdict was excessive. The evidence is conflicting but is sufficient to support the verdict of the jury, and the issue as to whether the plaintiff complained to the defendant about the pick, and whether defendant promised to remedy same, and furnish to the plaintiff safe, suitable, and proper tools, was within the province of the jury to decide. So we turn to the law to ascertain if the state of facts, as presented by the record, meets its requirements. It is admitted by the parties that this case was tried under the Federal Employers' Liability Act, 45 USCA § 51 et seq., approved April 22, 1908.
Defendant asserts the law to be that under the authorities, both state and federal, a servant entering or continuing in the employment of a master assumes the risks and dangers of the service, and in the absence of a complaint, and it says there was none in this case, he is barred from recovery by reason of the fact that he knew the pick which he was using was dull and defective, yet he continued to use the same. But this issue was fairly submitted to the jury, and they have said by their verdict that the plaintiff did complain in the manner and form above stated, and that the defendant promised to remedy the matter complained about; so the cases cited by the defendant in support of its deduction from the evidence that the plaintiff had made no complaint and the defendant made no promise are not in point.
Then defendant's counsel, in their brief, say that the question involved in this suit resolves itself into this:
The evidence in this case preponderates that a promise was made by the defendant to plaintiff for him to go ahead and use the pick until the supply train came in, which would be in a few days, and then he would get other picks and tie tongs. The defendant says that, granting that defendant did make the promise alleged to have been made, same was not sufficient in law to relieve the plaintiff of the assumption of risk, and in support of their contention cite, what they say, is the leading case on the subject, Gowen v. Harley (C. C A.) 56 F. 973, 981. The law as announced in this case is applicable to the facts therein, but does not apply to the facts of the instant case. The facts in the Gowen Case were that an employee had requested of his employer certain skids to be used to slide a box from one car to another, but notwithstanding the request as made the employer failed to furnish the skids and the employee continued to perform the duty of moving the box daily for three months, and the court rightly held that because the employer had failed to comply with said request in a reasonable time the employee assumed the risk of moving the box. Judge Sanborn, who handed down the opinion in the cited case, made this observation: ...
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