LE Whitham Const. Co. v. Remer

• Decision Date: 15 June 1939
• Docket Number: No. 1821.,1821.
• Citation: 105 F.2d 371
• Parties: L. E. WHITHAM CONST. CO. v. REMER.
• Court: U.S. Court of Appeals — Tenth Circuit

105 F.2d 371 (1939)

L. E. WHITHAM CONST. CO. v. REMER.

No. 1821.

Circuit Court of Appeals, Tenth Circuit.

June 15, 1939.

COPYRIGHT MATERIAL OMITTED

Robert D. Hudson and W. E. Hudson, both of Tulsa, Okl., for appellant.

John W. Tyree and S. R. Harper, both of Lawton, Okl., for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an action for damages brought by Sam Remer,¹ administrator of the estate of Sam (Buddy) Remer, deceased,² against the L. E. Whitham Construction Company. The case was before this court on a former appeal. See Whitham Construction Company v. Remer, 10 Cir., 93 F.2d 736.

The original complaint contained one cause of action for the alleged wrongful death of Remer. On reversal and remand, the plaintiff filed an amended petition containing three causes of action.

In the first cause of action plaintiff alleged that the Construction Company was engaged in constructing a road in Comanche County, Oklahoma; that it used dynamite and powder to blast rock in the roadbed; that Remer was employed by the Construction Company as a jackhammer operator; that the Construction Company operated two shifts, one from six A. M. to twelve o'clock noon, and one from twelve o'clock noon to six P. M.; that on September 4, 1935, the morning crew had been engaged in blasting and removing rock from the roadbed of the highway; that Remer reported for work at twelve o'clock on that day; that he was directed by A. D. Doyle, foreman of the Construction Company, to drill certain high places in a particular portion of the roadbed; that in accordance with such direction Remer began drilling a hole with the jackhammer; that when the drill had penetrated the rock several feet an explosion occurred causing bodily injuries to Remer, from the effects of which he died about six P. M., September 4; that the explosion was caused by a charge of dynamite and powder which the Construction Company had carelessly and negligently allowed to remain in such portion of the roadbed; that the existence of such unexploded charge was known to the Construction Company and was unknown to Remer, and Remer was unaware of the danger of drilling at such location; that no signals had been placed at or near such point to warn workmen of the presence of the unexploded charge; that Remer was 21 years of age, was earning $3.50 per day, and had a life expectancy of 41-½ years; that Remer left surviving him Helen Remer, his wife, and that she suffered pecuniary damage because of the death of Remer in the sum of $20,000.

In his second cause of action plaintiff adopted, by reference, the allegations of the first cause of action and alleged that he suffered damages on account of expenses reasonably incurred during the last illness and for the funeral of Remer in the sum of $224.

In his third cause of action plaintiff adopted, by reference, the allegations of the first cause of action and alleged that Remer languished for a period of six hours after the accident; and that he was conscious during such period and suffered great pain and agony to plaintiff's damage in the sum of $5,000.

In its answer the Construction Company denied negligence and alleged assumed risk and contributory negligence. It further alleged that on the day of the accident the Construction Company, through its foreman, had caused certain portions of the south side of the highway to be cleaned off by the use of shovels, and directed holes be drilled only in those portions by the jackhammer operators; that Remer was directed to drill only in those portions; that the purpose of clearing off the portions of the highway was to protect the workmen and Remer knew of such purpose; that the north side of the highway had been reduced to grade and there was no necessity for drilling holes on that side; and that Remer was engaged in drilling a hole on the north side of the road in violation of instructions at the time the explosion occurred.

It also set up as a defense to the second and third causes of action the statute of limitations.

The amended petition was filed more than two years after the appointment of plaintiff as administrator of the estate of Remer.

The facts established by the plaintiff's evidence are these:

The Construction Company was engaged in building a road up Mt. Scott in Comanche County, Oklahoma. It was necessary to employ dynamite and powder as explosive agents to break up the rock. Holes were drilled in the road with a jackhammer, a mechanical device operated with compressed air. After the holes were drilled the charges of dynamite and powder were placed therein and exploded in groups of twenty or more. At times some of the charges in a group failed to explode. Doyle was a supervisory foreman of the Construction Company. On September 3, 1935, he suspected that a charge of dynamite had failed to explode near the center of the road. On the afternoon of that day he instructed three of the employees to make a search for the unexploded charge of dynamite. They made the search, but failed to find the unexploded charge. No flags or other signals to warn employees were placed at the location where the unexploded charge was suspected to exist. Remer went to work for the Construction Company as a jackhammer operator at twelve o'clock noon on September 4, 1935. For about ten days prior to that time he had been employed as a truck driver by the Construction Company. He had previously operated a jackhammer. When Remer entered upon his duties at noon on September 4, 1935, he was instructed by Doyle to drill off the high places at a location in the road which embraced the territory where on the previous day the search had been made for the unexploded charge. Doyle advised the morning crew that he suspected an unexploded charge of dynamite in the vicinity and warned them to be careful. He gave no such warning to Remer. Remer drilled one hole on the south side of the road and then moved the jackhammer over to a high ledge of rock on the north side of the road. Before commencing the hole on the north side of the road, he kicked away the loose rock and cleaned the surface with air from the jackhammer over a space about three feet in diameter. No old hole was visible. The drill did not always follow a straight line. It sometimes diverged from the direction in which the hole was started. While Remer was engaged in drilling the second hole a charge of dynamite exploded, resulting in serious injuries to him from which he died at six-ten P. M. on that day.

The explosion embedded rock in the face and body of Remer, blew out his eyes, knocked out his teeth, fractured his nose and left jaw bone, fractured and mangled his left leg, and caused internal injuries. He remained conscious and suffered great pain until sedatives were administered after he had been removed to the hospital. Remer left surviving him Helen Remer, his wife, but no surviving children.

It was stipulated that the expenses of the last illness and the funeral of Remer amounted to $224 and that Remer had a life expectancy of 41-½ years.

Counsel for the Construction Company objected to the introduction of the evidence as to the extent of the injuries and the pain and agony suffered by Remer on the ground that the third cause of action was barred by the statute of limitations.

At the commencement of the trial, counsel for the Construction Company moved to dismiss the second and third causes of action on the ground that they were barred by the statute of limitations. It renewed this motion at the close of plaintiff's evidence. The motion was denied. Thereupon, counsel for the Construction Company moved for a directed verdict. This motion was denied. The Construction Company offered no evidence in its own behalf. The court in part instructed the jury as follows:

"You are instructed that dynamite is a dangerous instrumentality, and because of the dangers inherent in the use of dynamite, the defendant in this case assumed the obligation to use all appliances readily attainable, known to science for the prevention of accidents, to employ all the reasonable precautions against the dangers incident to the use of dynamite, and to use all reasonable and needed precautions for the safety of the employees engaged in the work.

"In this connection, you are instructed that if the defendant drilled or caused to be drilled numerous holes, and these holes were filled with dynamite, and the dynamite in any of these holes failed to explode, and, therefore, it remained in the ground as a source of future danger, that it was the duty of the defendant to use all reasonable means to locate those unexploded holes, and to advise those who were working in the vicinity of those holes, of the danger."

The jury returned a verdict on the first cause of action for $20,000 and on the second cause of action for $224, and found against the plaintiff on the third cause of action. Judgment was entered on the verdict for the sum of $20,000 on the first cause of action and $224 on the second cause of action. The Construction Company filed a motion for a new trial. The court required and plaintiff filed a remittitur of $5000. Thereupon, the motion for a new trial was overruled and the judgment was reduced to an aggregate of $15,224. The Construction Company has appealed.

Section 570, O.S.1931, 12 Okl.St.Ann. § 1053, reads as follows:

"When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages must inure to the exclusive benefit of the surviving spouse and children, if any, or next of kin; to be distributed in the same manner as personal property of the deceased."

Section 568, O.S.1931, 12 Okl.St.Ann. § 1051, reads as...