114 P. 730 | Okla. | 1911
This action was originally brought in the United States Court for the Central District of the Indian Territory by defendant in error, hereafter referred to as plaintiff, against plaintiff in error, hereafter referred to as the "company," *401 to recover damages for injuries alleged to have been received by plaintiff while in the employ of the company at South McAlester, Ind. T. The trial of the cause occurred in the district court of Pittsburg county, to which court it was transferred under the provisions of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Schedule to the Constitution upon the admission of the state. The trial was to a jury, and resulted in a verdict and judgment in favor of plaintiff for the sum of $1,000.
Nineteen assignments of error are set out in the company's brief for reversal of the cause, but in the argument these assignments are reduced to five propositions; and we shall consider the propositions on which reversal is asked in the condensed form as set out in the argument in the brief.
It is first insisted that the trial should have resulted in a judgment for defendant either by the court's sustaining the company's demurrer to plaintiff's evidence or by sustaining its motion for peremptory instructions to the jury to find for it. Able counsel for the company insists in his brief that plaintiff's evidence fails in four particular respects to establish a case in his behalf: First. That there was no proof of negligence on the part of the company. Second. Contributory negligence on the part of plaintiff. Third. That plaintiff had knowledge of all the conditions surrounding the work at the time of his injury and assumed all the risk incident thereto. Fourth. That the injury received by him was the direct result of the negligence of a fellow servant.
Whether there is anything tending to show negligence on the part of the company rendering it liable depends upon whether the construction foreman under whom plaintiff was working at the time he received his injury was acting within his authority. There is evidence reasonably tending to establish the following facts relative to the manner in which plaintiff received his injury: The company was engaged in the business of maintaining an electric light plant and in furnishing electric *402 lights to the inhabitants of South McAlester. Plaintiff was an employee of the company as a lineman; and at the time of the accident was a member of a gang under the supervision and direction of one Allen as construction foreman. In the afternoon on the date of the accident, the force of men, of which plaintiff was a member, was engaged in taking down one of the electric wires of the company from the poles on the east side of First street, and placing it on poles on the west side of said street. At the corner of First street and Grand avenue stood a pole about 30 feet in height that belonged to a telephone company in the city, the use of which had been abandoned by the company. To the north of it about 60 feet away stood another similar pole belonging to the same company. Plaintiff was directed by the foreman to ascend the pole at the corner and take therefrom the cross-arms then upon it and place thereon cross-arms furnished by the electric light company. In obedience to this direction, given by the foreman, he ascended the pole on the north side, after having observed its condition the best he could from the ground. He unloosened the nuts from the bolts that fastened the cross-arms on the pole, but was unable without help to remove the bolts from their positions or to detach the cross-arms. He thereupon called to a fellow workman, who had been sent to do some work on the pole just north and had finished his work, to ascend the pole to help him release the cross-arms. This fellow workman, whose name was Miller, like plaintiff, ascended the pole on its north side, on which side at the top of the pole plaintiff was then standing. As Miller ascended the pole, plaintiff changed his position to the south side of the pole, in order to give Miller a place to stand. In doing so, it became necessary for him to and he did unfasten his safety belt, after having stuck his climbing spur into the pole. In his new position, with one hand upon the cross-arms and the other upon the buckle of his safety belt, and while attempting to refasten his safety belt in his new position, the spur on his right foot slipped from its position on the pole, *403 his weight was thrown upon the cross-arms, which gave away, and plaintiff fell to the ground, receiving his injuries.
There is but little, if any, controversy as to plaintiff's contention that the pole at the point where he placed his spur in changing his position from which he subsequently slipped was in a decayed, rotten, or defective condition; but the company insists that Allen, the construction foreman, was without authority to furnish the pole upon which the accident occurred to plaintiff; and that his doing so was in violation of the orders of the company, and whatever negligence he was guilty of was the negligence of a fellow servant.
It is well-settled doctrine that it is the duty of the master to furnish the servant or the employee a reasonably safe place in which to work, reasonably safe appliances with which to work, reasonably safe material and reasonably competent fellow servants to work with; and this duty cannot be delegated by him so as to relieve him of liability for injuries resulting from its violation. Neeley v. Southwestern Cotton Seed Oil Co.,
"In all cases at common law, a master assumes the duty towards his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work, with reasonably safe machinery, tools, and implements to work with, with reasonably safe materials to work upon, and with suitable and competent fellow servants to work with him; and, when the master has properly discharged these duties, then, at common law, the servant assumes all the risks and hazards incident to or attendant upon the exercise of the particular employment or the performance of the particular work, including those risks and hazards resulting from the possible negligence and carelessness of his fellow-servants and coemployees. And at common law, whenever the master delegates to any officer, servant, agent, or employee, high or low, the performance of any of the duties above mentioned, which really devolve upon the master himself, then such officer, servant, agent, or employee stands in the place of the master, and *404 becomes a substitute for the master, a vice principal, and the master is liable for his acts or his negligence to the same extent as though the master himself had performed the acts or was guilty of the negligence."
But, where the injury has resulted from the negligence of an employee in furnishing defective material, it must be shown that the employee was authorized to supply the materials which caused the injury. 2 Labatt on Master and Servant, p. 1659; 26 Cyc. 1329.
Plaintiff in the instant case in his brief concedes, in effect, that foreman, Allen, was his fellow servant in all respects, except as to the furnishing of the defective pole from which he fell, and we think properly so. This foreman had charge of the construction crew under the management and supervision of the company's superintendent. He was not the head of a department of the company, nor was he in general charge of the company's affairs. He and the crew performed such work only as was assigned to them by the superintendent; the crew acting under his immediate control after having been assigned any piece of work by the superintendent. There is no direct testimony to establish the authority of the foreman to obtain and furnish the particular pole from which plaintiff fell, and the superintendent of the company testifies that he had no such authority; but there is evidence tending to establish that the foreman prior to the accident had at different times obtained poles from the telephone company, and the same had been used by the crew with the knowledge and acquiescence of the superintendent of defendant company under whose general supervision the foreman and his gang were. There is also evidence to the effect that the superintendent appeared at the scene of the accident immediately after it occurred; that he made no reprimand of the foreman; and that, on the succeeding day, the pole was rigged with the appurtenances of the defendant company and used by it for some time thereafter. Evidence that the foreman had been allowed at different times previously, with the knowledge of the superintendent, to obtain *405
from the telephone company poles to be used in the work in which the crew was engaged, and that the defendant company, acting through its superintendent, ratified the acts of the foreman in this particular case, was competent to show circumstances from which the jury might reasonably infer that the foreman was acting within his authority. St. L., I. M. S.Ry. Co. v. Bennett,
The court permitted plaintiff to introduce in evidence the top half of the alleged defective pole, and this action of the court is also urged as error. But this character of evidence is competent when the object exhibited to the jury is identified and shown to be substantially in the same condition as it was in when the accident occurred. King v. N.Y. Cent. HudsonRiver Ry. Co.,
In Walker v. Village of Ontario,
"The decay of wood is a slow and gradual process, varying somewhat according to the conditions and the nature of the wood, but quite well understood by all men of ordinary intelligence and observation. Knowing how the wood had been kept from the time the bridge broke down until the time of the trial, such men could easily arrive at an approximately correct conclusion as to its condition at the time of the accident."
The court gave the following instruction:
"If you believe from the evidence that plaintiff was working for defendant under the orders of Elmer Allen, a line foreman, and in the line of his said work was directed by said foreman to climb said pole and do certain repair work, then it would make no *407 difference as to whether or not said pole was actually owned by said defendant, as it would be deemed to be under defendant's control and entitled to be treated as though said pole was actually owned by defendant."
This instruction, standing alone, does not correctly state the law applicable to the facts in this case. Whether, when it is read in connection with other instructions given, it is so modified as to render the error therein not prejudicial, is unnecessary here to decide. We suggest that, if at any subsequent trial of this case the facts require a similar instruction, this instruction be so modified as to state that if it is found that plaintiff was working for defendant under the orders of Allen as line foreman, and, if it is found that Allen had authority to secure for the company the alleged defective pole, then it would make no difference as to whether said pole was actually owned by the defendant, as it would be deemed to be under defendant's control, and may be treated as though the defendant actually owned it. The verdict of the jury was concurred in by only nine members thereof. There was objection to the verdict and to the rendition of judgment thereon by defendant, on the ground that it was not a unanimous verdict. Section 19, art. 2, of the Constitution, authorizes in civil cases three-fourths of the whole number of jurors concurring to render a verdict. But whether this provision of the Constitution applies to cases pending at the time of the admission of the state was considered by the court inPacific, etc., Insurance Co. v. Adams,
The judgment of the trial court is accordingly reversed, and the cause remanded.
All the Justices concur.