Missouri, O. & G. Ry. Co. v. Davis , 54 Okla. 672 ( 1915 )

This action was commenced in the district court of Hughes county by the defendant in error, Hiram L. Davis, as plaintiff, against the Missouri, Oklahoma Gulf Railway Company, as defendant, to recover damages for alleged personal injuries. The material facts are: That Hiram L. Davis, the plaintiff in the lower court, was a section hand in the employ of the defendant, and as such was called out in May, 1912, by the defendant to assist in clearing away a wreck which had occurred on defendant's road. The pleadings and evidence show that at the time the alleged injuries were received plaintiff was acting under the directions of the foreman of the wrecking crew. While doing this the wrecking machine broke, and caused the injuries complained of. Plaintiff by proper pleadings alleges that the machinery was defective, and charges negligence on the part of the defendant in furnishing dangerous and defective machinery with which to do this work. There being no question raised in this court as to the pleadings, it is unnecessary to further set them out. The cause was tried to the court and a jury. The defendant demurred to plaintiff's evidence, which demurrer was overruled, and the jury returned a verdict for the plaintiff for $1,500, which became a judgment; and the defendant appeals from this judgment.

There are numerous assignments of error, but the only issue before this court is one of law; as the facts have been passed upon by the jury, and there being evidence to sustain their verdict, this court, as has often been said, will not attempt to weigh the evidence.

The defendant (plaintiff in error) complains of a portion of instruction No. 2, given by the court. That portion of the instruction complained of is the following:

"In this case the law imposes upon the defendant company the positive duty to have used reasonable care in seeing that the derrick and boom pole and the U-bolt, and other attachments of the wrecking machinery were so constructed as to have been in a reasonably safe condition, and it was the positive duty of the defendant company to see that the machinery and appliances used were sound, and the failure of the company to provide sound machinery to do the work of clearing away the wreck and to provide reasonably safe equipments for that purpose, taking into consideration the character of the work to be performed by its employees while engaged in the service of the company, would be negligence, under the law, on the part of the defendant."

The complaint is that this portion of the instruction is inapplicable to the facts in the case; that there was no evidence as to the defective condition of the machinery offered by plaintiff. But this contention is not supported by the record. One witness without objection testified that, immediately following the injury of the plaintiff, the foreman said:

"I told them if they did not fix that thing up, somebody would get killed. Q. What was he talking about? A. The wrecker, I reckon; said he told them fellows if they did not fix that, that it was going to kill somebody. Q. What did he say; anything else? A. Yes, sir. He said it come pretty nigh killing somebody last night."

Several other witnesses testified to these same remarks. We think this evidence clearly raised the question of the condition of the machinery, and justified the instruction complained of. But this instruction, among other precautionary admonitions, further charged the jury that:

"The railroad company is not to be held as guaranteeing or warranting absolute safety to the plaintiff, nor is it bound to furnish the safest machinery nor to provide the best methods for its operation in order to save itself from responsibility for accidents resulting from its use. If the machinery and appliances used be of ordinary safe character, properly equipped with reasonably safe appliances, and in sound repair, and such as can, with reasonable care be used without danger to its employees, that is all that is required, and when it has exercised that degree of prudence and care that an ordinary reasonable prudent man would provide in guarding against accidents or injuries to himself under like circumstances, it has exercised all the duty that the law has imposed upon it to the plaintiff."

The instruction, taken as a whole, we think, was very clear, accurate, and fairly stated the law applicable to the facts in the case.

The defendant further complains of the court's refusal to give two requested instructions, which are to the effect that the defendant is not liable for latent defects, which by reasonable diligence could not be detected. But this proposition was fully and clearly covered by No. 3 of the instructions given by the court, and this contention is wholly without merit.

The further complaint is that the court refused requested instruction No. 16, which is as follows:

"The court instructs the jury, as a matter of law, that a master who buys machinery, tools, appliances, or materials from a reputable maker and who also uses reasonable care in inspecting and setting the same up and putting them into use or operation is not liable to an employee for injury resulting from the negligence of the maker of the material or in his doing the work in an improper manner."

This instruction, we think, imperfectly states the law on the question, and was properly refused. The master cannot rely simply upon the reputation of the dealer from whom he purchases, and "reasonable care in inspecting and setting up the machinery and putting it into operaation," but he must also resort to such tests as are practicable and reasonable, considering the character of the machinery and the dangers connected with its operation. It is often the case that the mere visual inspection is insufficient, and of but little practical value. As said by Mr. Thompson:

"The fact that the master purchases the machine, tool, or appliance from a reputable manufacturer does not excuse his own negligence in inspecting it, in testing it, and in setting it up, but is a circumstance entering into the general ingredient of evidence, speaking on the question whether or not he has exercised care in the premises." (4 Thompson on Negligence, sec. 3990.)

And we think this is the correct rule, and the fact that the master purchased the machinery from a reputable dealer is only an ingredient of evidence on the question of whether or not he has exercised reasonable care in the premises. And taking the instruction as a whole, the question of reasonable care was fairly submitted to the jury, and as favorably to the defendant as the law would warrant.Hailey-Ola Coal Co. v. Parker et al., 32 Okla. 642,122 P. 632, 40 L. R. A. (N. S.) 1120; C., R.I. P. Ry. Co. v. Wright,39 Okla. 84, 134 P. 427; Rock Island Coal Mining Co. v.Davis, 44 Okla. 412, 144 P. 600.

The evidence is sufficient to sustain the judgment, and we cannot say the judgment is excessive. We therefore recommend that the judgment be affirmed.

By the Court: It is so ordered.

ON PETITION FOR REHEARING.