Woodruff v. Phillips
| Decision Date | 10 September 1929 |
| Docket Number | 18817. |
| Parties | WOODRUFF v. PHILLIPS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where an employee's suit for damages against his employers is by the allegations of the petition, made to depend upon whether or not defendants furnished him a safe place in which to work and safe and suitable tools with which to work, and where the evidence favorable to plaintiff and the proper inferences therefrom do not reasonably tend to establish either of said allegations of negligence, it is not error for the court, at the conclusion of the evidence, to sustain defendants' motion for a directed verdict.
The allowance by the trial court of an amendment to plaintiff's petition during the trial is within the sound judicial discretion of the trial judge, and his action thereon will not be reversed upon appeal unless said discretion has been abused.
Record examined; held, that the refusal of the court to permit amendment to petition was not reversible error.
Evidence and record examined with respect to the ruling of the court to the effect that defendants did not come under the Workmen's Compensation Law (), and held no error.
Record and evidence examined; held, that the sustaining of the trial court of defendants' motion for a directed verdict was not error.
Commissioners' Opinion.
Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.
Action by J. W. Woodruff against Dan M. Phillips and others. Judgment for defendants, and plaintiff appeals. Affirmed.
Fred E Suits and C. E. Hall, both of Oklahoma City, for plaintiff in error.
George H. Giddings, Sr., and H. L. Stuart, both of Oklahoma City for defendants in error.
The parties appear here as they appeared in trial court. J. W. Woodruff sued defendants in district court of Oklahoma county for damages, and his petition may be summarized as follows: That defendants operated for hire a line of taxicabs for passengers and baggage in Oklahoma City, and in connection therewith an automobile machine shop of which L. E. Rowland was foreman. That on August 31, 1926, while plaintiff was assisting him, the foreman attempted to drive a frozen bearing off a shaft with a hammer and punch, and a particle of steel flew off and struck plaintiff in the left eye, destroying the sight thereof. That the usual way to remove a bearing in such case was by a presser, but said machine shop was not equipped with such device. That defendants employed two persons in the shop, but defendants failed to provide compensation insurance under Workmen's Compensation Act (Laws 1915, c. 246, as amended).
The acts of negligence alleged are: Failure to furnish safe and proper tools; failure to furnish a safe place in which to work.
Defendants' answer consisted of a general denial and a denial that they operated a machine shop in which dangerous machinery was used, or that their business was hazardous, or that they came under the Compensation Law. They pleaded contributory negligence, that such injuries as plaintiff sustained were the result of ordinary risks assumed by plaintiff and incidental to his employment and such as were obvious to him, and for which defendants were not liable.
The following may be considered a résumé of the vital evidence:
J. W. Woodruff, plaintiff, 64 years old, employed one year with defendants, who were engaged in checkered cab and baggage business, was employed by Dan Phillips. Defendants' building is about 75X140 feet. Their cars are stored in front, and there was a repair shop about 30X50 feet in rear. They had one-half dozen cabs and same number of trucks. Lindsay Rowland was foreman of shop. Witness worked mostly on small cars, repairing doors or bodies, but helped Rowland when needed. No other regular workers, but once in a great while some of the taxi boys came in and helped fix cars. On the morning of August 31, 1926, Rowland and witness took down a car, found roller bearing worn out and frozen to shaft, and put it on vice, and Rowland hit it with hammer, but it did not come off, and witness told him that he (witness) would get a steel pinch bar, and he went over to bench 10 or 12 feet away, and as he turned around at bench Rowland had the shaft on the anvil, and he hit it a terrible lick, and a particle of metal flew in his eye.
The hammer used was a 1 1/2-pound machinist's hammer. Witness had not been called upon before to remove a bearing. Witness knew the bearing was case-hardened and very brittle. Witness asked Mr. Rowland: "Is that the right way for it to come off?" He said: "It ought to be pressed off; we aint got nothing to press it off." Later during the day witness took two prongs and pulled the other bearing off himself; put a piece of metal behind bearing and screwed it down tight, and then put a steel punch against bearing and hit the punch with a hammer. The punch was hard steel. This was on same day, but after plaintiff's injury. Plaintiff has worked in a blacksmith shop, has done wagon repair work, but is not a regular blacksmith. There was no defect in hammer, punch, or anvil. Sliver must have come from piece of metal that was hammered. No cars except defendants' were repaired at shop.
Walter Spears, witness for plaintiff, has been a mechanic for eight years; the usual way to remove bearings from shafts is by pressing them off; that it is not safe to hammer them off; that the steel is likely to chip off; that witness does not know how these bearings are removed in taxicab repair shops; he has never been around any taxicab repair shop and does not know how they do it; that this particular work is out of his line, as he is engaged principally in Ford repairs.
Cross-examination:
"Q. There isn't any pressing machine on earth that you know of that could do that work? A. I think I could press it off.
Q. Tell me if there is a machine in this town in a machine shop that could do that work in any way except to take a hammer and knock it off. Tell us one. A. I can't tell any particular place because I don't know anything about what the other shops use and I never visited them.
Q. You don't know anything about it, do you? A. Not the other men's shops. * * *
Q. If you took it down there (to the Ford shop) you couldn't work in that shop. A. We would figure out some way of getting it off without hammering it. * * *
Q. You never saw a man take a hammer and knock on a thing like that in your life, did you? A. Yes, sir; lots of times. * * *
Q. Tell the jury where you have seen that done? A. Any shop. * * *
Q. You can't tell us any shop that it isn't done that way? A. I think if you would visit some of these other shops, large shops, you would find they have some kind of press to get that off with."
C. E. Walls: Is a mechanic and runs a filling station, garage, and machine shop. Says that he has to have certain kind of equipment to handle certain kinds of cars, and that such equipment is very expensive. This witness explains that where the bearing is not galded or stuck it can be removed by a press.
He says that it is customary for chips of steel to fly in any shop.
A. E. Clark, mechanic: Operates Clark's garage; does general repair work; the usual and customary way of removing bearings from crank shafts is to press them off where they have the equipment. Asked why they are not hammered off, says that it might not be quite safe on account of flying particles and that it might damage the shaft; but he says that if you hit any piece of iron something is liable to fly off of it, and this is known by people of average intelligence. The witness examined the exhibit in the case, and says that it is a rather mean job, and that he would use a blow torch and hit it.
Cross-examination:
Witness further indicates that if that job were brought to his shop that he would not accept it at all; that to use the blow torch would mean to damage the gear shaft.
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