HUNTER CONSTRUCTION COMPANY v. Watson , 1953 Okla. LEXIS 690 ( 1953 )

O’NEAL, Justice.

The parties will be referred to as they appeared in the trial court, that is, Saletha Watson, as plaintiff, and The Hunter Construction Company, a corporation, as defendant.

Saletha Watson, the widow of A. R. Watson, sued to recover damages for the alleged wrongful death of the deceased. The plaintiff recovered a judgment in the trial court. The defendant appeals contending that the verdict and judgment rendered is not sustained by the evidence and is contrary to law.

A resume of the record discloses that defendant was engaged in the construction of roads and highways; that in its construction work upon two road projects, one being near Lindsay in Garvin County, and the other near Waurika in Jefferson County, Oklahoma, it used a large new motor grader, known as the Adams 610 motor grader. This machine weighed 26,650 pounds and was driven by a heavy Diesel engine. The machine has six wheels. The four wheels on the rear of the machine are the drive wheels and the two wheels in front are the steering wheels. There was a cab over the driver’s seat, and within the cab there were several levers, wheels and rods used by the driver in the control and operation of the machine. A steel arch-shaped beam or frame extended in front of the driver’s cab to which frame was attached a circle holding a scraper blade approximately 14 feet long. This circle could be manipulated by the driver sitting in the cab so as to cut earth on the level or in an upward position, on either side of the machine, to a height of approximately 10 feet, or below on either side of the machine to about six feet, while the wheels of the machine were running on level earth. The defendant had been engaged in grading and filling work on a highway near Waurika, which work was not entirely finished when defendant commenced road construction work upon the Lindsay project. In October, 1948, the defendant’s superintendent, Mr. Wiles, instructed Mr. Watson and two other of its workmen to take the grading machine, a Caterpillar bulldozer, and steel cables and other road equipment to Waurika, and complete the road work on that project. The superintendent furnished Watson a blueprint of the road and explained the work to be performed by him and his fellow employee. The superintendent advised Watson that there were two slopes along the new road, which were approximately 18 feet high, and specifically admonished him not to use the heavy grader machine on these cuts; that if he found it necessary to do work upon these cuts or slopes to use the I-beam. After Watson and his coworker, Horace Thomas, arrived at Waurika, they conferred with representatives of the State Highway Department with reference tq the road work to be performed. A third employee, who had assisted in moving the road equipment to Waurika, was not present when the subsequent accident occurred as he had returned to Lindsay.

On the afternoon of the first day’s work, Watson, contrary to his instructions, attempted to use the heavy grader on the north slope of the cut.. The machine had proceeded to a .place so that the front wheels were near the top-of the cut, all wheels of the grader then being on the slope of the cut, when suddenly it became overbalanced and turned over on its left side, pinning Watson underneath the cab, resulting in his instant death. Thomas, his helper, immediately prior to .the accident, was engaged in operating a bulldozer on the south side of the road. Watson told Thomas to back.his bulldozer out of the way as he, Watson, was going to use the big machine to slope the south bank. Thomas replied: “Mr. Watson, you can’t do it.” That thereupon Watson replied: “The hell I can’t do it. I have sloped banks steeper than this and you know it.”

Mr. Milam, Vice-president of the defendant’s company, met Watson as he was driving the big machine down the highway north of Lindsay. He testified that he asked Watson what road he was taking to go to Wauri-ka, to which Watson replied that Mr. Wiles told him to take the road going by Pauls Valley. Milam asked Watson if he thought Thomas could do the work at Waurika, and Watson replied that he knew Thomas could as he had worked with him on other jobs. Milam then asked Watson what instructions he had received from Mr. Wiles, to which Watson replied that he- had gone over the blueprints with Wiles and was instructed tS-finish the job with the exception of the rough cut on the middle of the job, and the. back cut in the east end of the joR ■

Thomas, Watson’s coworker, testified that: he was present when defendant’s superintendent, Mr. Wiles, told Waston to stay off' of the steep grades. Thomas testified as. follows : “He told us when we got down to-Waurika, he told us, he said, ‘Just work: around on bridges and culverts’ and said,. ‘Don’t fool with those banks because they were too steep’ and he said that he would', be down there in just a day or so.”

The evidence is without dispute that Watson was an experienced workman in road construction work. He had worked as a superintendent of construction work for Ot-tinger Bros, and had operated the Adams 610 Motor Grader for The Hunter Construction Company on the Lindsay project fbr a period of months prior to the accident referred to.

Plaintiff seeks to sustain the judgment rendered in her favor on three separate- grounds:

(1) That the servant’s violation of a master’s rule will not defeat plaintiff’s recovery-where the evidence disclosed primary negligence of the master, and where the proximate cause of the alleged violation of the rule must be submitted to the jury with other controverted issues; (2) that the employee here placed in temporary charge of the work upon the Waurika project is n.ot deprived of his previous rights to be furnished a safe - place in which to work and safe tools with which to work; and (3)-that the instructions as a whole, properly-embody the applicable law as applied to the-proven facts.

Although defendant in its motion for a. new trial and by 'petition-in-error, advances, numerous grounds upon which defendant contends that the verdict and judgment, thereon should be set aside, we think that all grounds may properly be merged in the defendant’s assertion that the verdict of the-jury is not sustained by the evidence and is. contrary to law. ■

As we view this record we are compelled, to the conclusion that plaintiff has failed to-. establish primary negligence of the defendant, and therefore the lower court erred in refusing to sustain defendant’s demurrer to plaintiff’s evidence, and in refusing to sustain defendant’s request for an instructed verdict. As we have seen from our statement, supra, Watson was specifically told by two officers of the defendant company not to use the heavy machine on the steep grades or slopes of the road. He was warned by his fellow employee, Thomas, of the danger involved. The master had furnished him the Caterpillar bulldozer tractor, steel cables and I-beam for use on these steep cuts and grades. It is not suggested that the use of the bulldozer equipment was not a proper equipment for use upon the steep grades, but, on the contrary, it is shown that this kind of equipment is uniformly employed by road contractors in cutting down steep grades and slopes. It is axiomatic that every violation of a rule of the master does not relieve the master of liability resulting in injury to an employee. It is conceivable that where an employee is confronted with an extraordinary situation requiring the sudden exercise of judgment or discretion, that a .variance of or a direct violation of the master’s rule or direction, is justifiable and will not relieve the master when there is probative evidence of negligence.

In the case at bar there can be no recovery for the reason that the death of Watson proximately resulted from his own negligence in attempting to use the heavy machine in a place where it could not be used, and in a place where he had been told by his employer not to use it.

We held in Hanson, Ex’x v. Atchison, T. & S. F. Ry. Co., 184 Okl. 480, 88 P.2d 348, and Kurn v. Reese, Adm’x, 192 Okl. 78, 133 P.2d 880, that where an employee deliberately disregards a rule or instruction of his employer thereby placing himself in a place of danger resulting in his injury, that the employee is guilty of primary negligence barring his recovery for injuries.

The plaintiff, Saletha Watson, argues that the Hanson and Kurn cases, supra, have no application for the reason that they arose under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq. The Federal Employers’ Liability Act makes the carrier liable in damage for any injury or death resulting in whole or in part from the negligence of any of its officers, agents or employees. The rights which the Act creates are federal rights protected by federal rather than local rules of law, but those rules have been fashioned from the common law. However, under -the Federal Act, the employee must, as in the State Court, allege the act of negligence relied upon and must make out a submissible case as to the negligence and its causation. The Act in its essential features is based upon the common-law concept of negligence, subject to certain qualifications, not upon the more modern concept of liability under various workmen’s compensation acts. Bailey, Administratrix v. Central Vermont Railway, Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444.

Where' the evidence fails to establish any primary negligence or a breach of duty imposed upon the employer, it is the duty of the trial court to sustain a motion of a defendant for a directed verdict.

In Sanders v. McMichael, 200 Okl. 501, 197 P.2d 280, 283, we said:

“The question of negligence or no negligence is one of law for the court where but one inference can reasonably be drawn from the evidence; and, where the plaintiff fails to show primary negligence or breach of a duty on the part of defendant then judgment must be for defendant.” '

In Norman v. Scrivner-Stevens Co., 201 Okl. 218, 204 P.2d 277, 278, we held:

“The proximate cause of an injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was made possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.”

The remaining question as to whether Watson was a vice-principal and that defendant did not owe him a duty of providing a safe place to work or safe tools and equipment to use, need not be further considered, in view of our disposition of the case that plaintiff failed to make a case upon which relief could be granted.

The case is reversed.

HALLEY, C. J., and DAVISON, WILLIAMS and BLACKBIRD, JJ., concur. JOHNSON, V. C. J., and WELCH and CORN, JJ., dissent.