Wyman v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 31 October 1916
• Docket Number: 7922.
• Citation: 184 P. 758,76 Okla. 172,1916 OK 929
• Parties: WYMAN v. CHICAGO, R.I. & P. RY. CO.
• Court: Oklahoma Supreme Court

184 P. 758

76 Okla. 172, 1916 OK 929

WYMAN v. CHICAGO, R.I. & P. RY. CO.

No. 7922.

Supreme Court of Oklahoma

October 31, 1916

On Rehearing, Oct. 14, 1919.

Syllabus by the Court.

Where the servant in an action against the master avers in his position, and supports the same by evidence, that the injuries received are due to latent defects in a bridge which collapsed, the master is not liable for negligence unless such latent defects were know to the master or would have been discovered in the exercise of reasonable diligence.

The proposition that an inspection would have discovered the latent defects in the bridge is an affirmative one, and the burden of proof rests upon the servant. The doctrine of res ipsa loquitur does not apply between master and servant, and in case of accident to an employé the fact of accident carries with it no presumption of negligence, and it is an affirmative fact for the injured employé to establish that the accident was the result of negligence of the employer.

To constitute actionable negligence, it must be averred and proved that the negligence complained of was the proximate cause of the injury received. It is not sufficient for the employé to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was.

The evidence in this case carefully examined, and held, that it does not disclose actionable negligence on the part of defendant, and that the demurrer to the evidence was properly sustained.

Commissioners' Opinion, Division No. 1.

Error from District Court, Blaine County; Thomas A. Edwards, Judge.

Action by James A. Wyman against the Chicago, Rock Island & Pacific Railway Company. Defendant's demurrer to the evidence sustained, and judgment entered for it; plaintiff's motion for a new trial overruled, and he brings error. Affirmed.

Wm. O Woolman and R. J. Puderbaugh, both of Watonga, for plaintiff in error.

Foose & Brown, of Watonga, C. O. Blake and R. J. Roberts, both of El Reno, W. H. Moore, of McAlester, J. G. Gamble, of Des Moines Iowa, and Keaton, Wells & Johnston, of Oklahoma City, for defendant in error.

COLLIER C.

This is an action brought by plaintiff in error against defendant in error to recover damages for personal injuries received by the collapse of a bridge spanning the South Canadian river due to the alleged negligence of defendant in error.

Hereinafter the parties will be styled as they were in the trial court.

The negligence alleged in the petition is:

"That the south portion of said bridge was constructed of timbers and embankments, and that the portion of said bridge over the main channel of said stream was of steel and concrete and apparently a safe and substantial bridge and structure, and apparently a safe place to be and perform the work assigned; still, not withstanding the apparent stability of said bridge, there was a latent defect in the construction of the same and the abutment and approach at either end of the steel portion of said bridge, in this, that while the abutment and piers were of concrete it was so negligently and carelessly constructed by the defendant that they failed, in this, that instead of the abutment being solid and reinforced concrete, which should have been under the circumstances and conditions, the same was so negligently and carelessly constructed that the upper part of said concrete work was separated from the lower part, by the careless and negligent allowing or permitting the lower part to set, become solid and hard before the top part of the concrete was placed thereon; that in each and all of the piers and abutments the same were not reinforced and had not been reinforced, which defect was negligent and careless and showed negligent and careless building of the same.

Plaintiff further states that the defendant herein had knowledge of the defective construction of said bridge at the time that it was made, but notwithstanding this knowledge, and notwithstanding the defective condition of the construction of the same, the said defendant through its authorized agents, officers and representatives, carelessly, negligently and willfully ordered this plaintiff thereon, informing him that the same was a safe place to work, when in truth and in fact it was not a safe place to work, all of which facts was well known to the defendant, and which facts were absolutely unknown to the plaintiff.

That if the defendant had built and constructed said bridge, abutment and approaches as it should have been built, the said bridge would not have become broken, washed out, went down or become destroyed.

That said defects were hidden from view and could not have been seen by this plaintiff, and he knew nothing of them, but believed them to be perfect and sufficient and trusted and relied on the special knowledge or the supposed special knowledge and information of the said W. F. Werner as such master carpenter, superintendent or foreman, and relying thereon and believing said bridge to be safe this plaintiff went upon said bridge and performed his work under the orders and directions of the said W. F. Werner as such master carpenter, superintendent and foreman, at said time.

Plaintiff further states that had it not been for the defective concrete work as hereinbefore set forth said abutment, approaches and piers would not have given way or gone out, nor would the bridge have been wrecked, nor would the injuries received by this plaintiff have occurred."

The answer of the defendant denies all the material allegations of the petition and pleads assumption of risk, contributory negligence on the part of the plaintiff, and the act of God.

The uncontradicted evidence discloses that an unprecedented flood existed in the South Canadian river, across which was a bridge supported by two piers and an abutment, a pier on the south side, and a pier in the center of the stream, and an abutment-also designated...