*1 v. MARTIN. ALTUS CITY OF
No. 34081.
Supreme of Oklahoma. Court
Jan. 1954.
Rehearing March Denied
© CO' plaintiff.
jury returned a verdict favor appeals. Defendant un- 'practically The essential facts are disputed. that de- showed .evidence *3 sewage charge ceased was in of defendant’s disposal system, station including a booster plant; disposal sewage to the used move to of an that such booster station consisted tank, through underground going entered building a in the a over manhole floor of ladder; tank in the the and down a steel electric motors bottom of the tank were two being pumps, and two electric latter the badly pumps so the and cleats worn that repacked frequently; in them had because of and defective -condi-- this worn pumps the' sewage tion of the flowed out-on floor, and that went when the deceased repack down into said or other- tank repair pumps customarily wise wore rubber boots. fall, only witness to deceased’s Martin, himself, than A. Willard ‘ nephew, steps who testified that the of the Duvall, Pelley, Altus, Dud- L. A. Duke slick; ladder were worn and that the tank Duv.all;
ley,
Dudley,
City, of
&
Oklahoma
painted
a
color inside and was
dark
counsel,
in error.
lighted
drop light,
aby
which did not
Altus,'
Oden,
for defendant'
Robinson'&
give
light;
.descending
sufficient
that- one
in error.
the tank had
reach
feet
into
about 2½
forward and downward
the manhole
from
WILLIAMS,-Justice.
ladder;
highest
to contact
of the
rung,
parties
herein as
áre referred to
about 9:30
the morn
at
or 10:00 o’clock in
they appeared
trial
-court.
im
ing,
house,
the witness -was
tool
Martin,
mediately
Mildred
administratrix
over the tank and deceased was
Martin; deceased,
below;
working
tire
tank
estate of R. G.
sued
that deceased
Altus,
damages resulting
up
climbed
to recover
ladder and was stand
Martin,
ing
body
of R.
her hus-
with
of his
out
from
death
G.
of the man
hole,
band,
having
alleging failure of defendant
to fur-
come
for some
mate
up
more
deceased,
employee,
reasonably
pack
pumps;
rial with which
its
nish
place
day witness turned his
get
pack
to work and that on the 20th
back to
safe
some'
injured
ing to -hand to
January,
Martin
his left
deceased and as he
so'
did
sound;
heard a
negligence,
as -a -result of such'
looked around1
arm
and saw the
disappear
manhole;
deceased
injury he died' On October
down-the'
he went down and
generally
allega-
Defendant denied
such
assisted
out of
deceased
tions, set-up
contributory
tank
found that deceased
neg-
'defenses of-
had hurt
assumption
his elbow. He further
of risk and
testified that
ligence,
unavoidable
in,
accident,
pumps and motors
pleaded-that
city
booster
station
and.
had to be cleaned at least
operation
sewage
plant,;
its
twice a week and
'booster
injured,
prior
deceased
accident he had
was exer-
heard the
where
about,
complain
-the-mayor
governmental-function. Trial
deceased
cising a
was-
request
pumps;
jury,;
court denied de- condition of
.their
had to..a
trial
motion,
verdict;
testimony
the,- repair,’'His
as-to the
for-directed
condition
fendant’s
by that of evidence
pumps
of the
wás substantiated
herein- as to
de
received
deceased, sign
Martin,
Robert G.
tank where -the accident oc
son
curred,
his father
gone
who had on occasion
with
there was
also evidence that
premises
slippery
station and who testified
booster
were maintained in
pumps
that slimy
City Mangum
were old and worn out and
condition.. See
Garrett,
tank.
oil and
accumulate in the
slime would
192P.2d
wherein
this court said:
appears
injured
It
elbow of
that the
left
“The,maintenance
developed bursitis,
repair
deceased
and on
of its
to be
corporate
proprietary
occasions the fluid in the elbow had
sewers is a
removed,
piece
city,
bone
city
and also that a small
function of
liable
*4
elbow;
injuries
con-
was removed from the
that the
for
sustained because of its
worse;
grew
repair
dition of deceased
that was
failure to properly maintain and
released from his duties
continued on
its sewers.”
but
by
pay;
superin-
full
he was sent
his
Spaur City
Pawhuska,
See also
v.
of
hospital
tendent to
certain
in Oklahoma
a
408;
43 P.2d
Oklahoma City v.
City,
operation
performed
where an
Stewart,
779;
City
184 P.
operation
on the
Prior t'o this
elbow.
Sayre Rice,
of
v.
'283
'long
possible causes, produced
grease
wear and
usé
from-the
things,-' or other
consequent in-
slime
up
carried
the ladder on the' sole's oí
fall
of deceased and
with
rubber boots of deceased.
In
jury.
agree
are unable 'to
We
Price,
Pipe Line
Mid-Continent
Co. v.
contention.
626,
176,
Casualty Reciprocal
225 P.2d
Sheridan,
Deep
Adm’x v.
In the case of
567,
Sutfin,
Exchange v.
Okl.
312, 205
Corp.,
P.2d
P.2d
Rock Oil
Okl.
we said
Okl.
225 P.2d
[203
182]
McMichael, 200
and in
Sanders
upon by
“‘Negligence
and relied
may
both cited
established
defendant,
prove any
there was a failure to
circumstantial evidence and the reason-.
negligence
therefrom..,,
defendant
able
on the
inferences to be drawn
proximate
or contributed to
and the
injury’
could have caused
cause
may
injury.
instant case the record
also be
determined from circum-^
greasy
evidence,
without contradiction the
shows
stantial
Griffin Grocery
235;
oily
Scroggins,
of the booster
condition of
floor
Okl. 293
Marl
P.
in-
Snider, Adm’r,
at the time the deceased was
and Refining
station
Co. v.
260, 257
jured;
there-is”,
that deceased had been down in
P. 797. Where
boots,
tank,
competent
rubber
and climbed
wearing
question
on
up
packing
negligence
for more
at the
back
introduced from which rea
injured.
jury
could use
might
time
sonable men
draw-different con
knowledge
common
that such condi-
their
clusions
is one for
jury,
and un
of the booster station floor would cover
der like
question
circumstances the
proximate
grease,
boots with
the soles
the rubber
cause is one
jury,
for the
sewage, tending
oil, slime and
to make them
Palacine Oil Co.
Philpot,
*6
any
easily,
123,
281,
slip
291;
on
substance more
and mak-
289 P.
Highway Const.
slippery
the
ing
Shue,
456,
more
and treacherous
steel
Co. v.
173 Okl.
of deceased’s death was the Keller, in Okl. doctor, testimony was based Hembree Von v. 189 local records, 74, 76, 119 P.2d wherein it was said solely hospital charts on and- syllabus inad- 4: that such charts were and records missible. “In order of book accounts hospital patients and the charts of proposition defendant this Under evidence, therein to be admissible question admissibility argues first the must be to have been cor- they shown records, cites hospital charts and rectly kept kept, to have been jurisdiction: this following cases from ordinary of business an es- course as Insurance Co. Life Accident National business, system sential 479; Roberson, 36 P.2d v. 169 Okl. reasonably at have been made Co. Bonding and Insurance Massachusetts transaction, near the time of the to be 885; Metro Jones, 185 P.2d entries, original books shown Bradbury, politan Insurance Life Co. be relevant and material to the issue.” exam 433. careful 65 P.2d A says syllabus Defendant the above that none these cases shows ination of necessary was not decision of the authority proposi for defendant’s them is court in that case that it mere dic- are hospital records not charts.and may, adopted by Be tum. that as it was case cit evidence.1 in the first admissible in overruled, court, has not been is X-ray ed, above, certain court held that part of the of this state. law See O.S. they because plates admissible were not 977; Wilkinson, see Corbin v. § representa be accurate shown to not 'been and McDonald v. spite they portrayed, in what tions of Stiles, 327, 54 P. that, records of the Oklahoma as (cid:127)contention public Department, they were It contended that re Health kept required quirements In the to be law. of the above rule were not com records case; cited, plied to ad refused with in the instant on the other case second hospital hand, full compliance. medical and the record shows certain mit - plaintiff; concerning hospital these were We therefore hold that rec records *7 company, properly insurance ords and charts were admissible. by offered defendant trial court’s court sustained and this holding unnecessary The above renders ground that them on to admit refusal consideration here the contention of a viola have been would their admission plaintiff, appears merit, to have subd. concern of-12 O.S.1951 § hospital were records admissible as an 'between privileged communications ing- against for admission interest the reason hand, at patient. In the case and physician plaintiff’s defendant sent deceased to involved, privilege is since question of no hospital question, hospital in and by plain offered were hospital records agent therefore the defendant. physician- settled is well tiff. It- proposition Under this defendant may by be waived one privilege patient argues next that “the cause of death must (see claim having right to Am.Jur. by expert testimony be established medical Witnesses, 440), the cited case is and sec. except layman in ap cases where a could applicable here. In the third not therefore preciate cause of death well as as a above, court refused to admit cited case doctor, as, example, person where a has not which did evidence in .instruments by run and killed been over train”. De records; hospital was a one purport- to be authority support cites fendant in of this was a written and the other -card” “clinic However, law. general argu rule of such doctor, three executed over by statement without merit for the ment is reason that in in date involved pertinent ye'ars after competent there case hand ex at case. testimony a physician pert medical that the accident caused the in the effect whether not question of The jury and death. are admissible and records hospital. charts ’ party proposition “A is not entitléd" argument last under this to an’action "assumption that the testi- to a continuance' ó'n' account of thei:' rests witness, wit mony physician referred in absence of a where the ness does in the and' paragraph next was insufficient not reside above county, death, party applicátion' seeking for the reason has' establish cause of location, hospital records from the known for some time his :and testified be, Since we have what which were admissible. his would án'd where testimony not admissible, already they shown that were no effort has been made to- secure ' n (cid:127) (cid:127) -testimony deposition.” argument is without merit. proposition The fourth is that at hand there was no case showing secure diligence court erred the admission evidence of the use of changes improvements witness; there booster attendance subsequent city showing to the acci was no station that an effort had been question. deposition. dent in While it is true that one to take made his The trial point, did not testified, refusing grant at one over defend commit witness error ’ ’ objection, improvements, the the ant’s to such continuance. he, points, at record shows that other judgment court, of the trial is af- witnesses, de for both firmed. fendant, testified same effect without objection. repeatedly We have held that JOHNSON, J., CORN, V. C. party may complain not under such cir DAVISON, O’NEAL, ARNOLD and JJ., Dry Kerr cumstances. See Wood v. Goods concur. Co., wherein HALLEY, J., BLACKBIRD, C. J., said: the court dissent. party complain may “A not of the ad- objection, mission of evidence over HALLEY, Chief (dissenting). Justice where other the same tenor There was no causal connection estab- objection.” was admitted without lished between neg- defendant’s The last is that the court ligence plaintiff’s deceased injury as granting erred not defendant’s motion it sho'wn what caused deceased to presented for continuance which was when slip and fall. What caused the deceased to the case was called for trial. The motion pure fall conj ecture. City physician,' recited that Oklahoma It was error repairs to admit evidence of testimony whose needed defendant after the accident and constituted reversi appear unable would 'be because he had ble error when considered with all’ the *8 - perform operations 1 day on : of other errors in this case. trial. Attached to the motion the affi- was City necessity of Altus of works physician davit of the effect that he through employees. its Here is the case of performed defendant and treated a employed man who had been for eleven operation (deceased died about two hours years doing particular job. There is operation), opinion and that in after the nothing in the record to show that he at physician, deceased had died of heart any complained time to the Fathers disease. that the ladder was defective. If it became elementary
It is greasy duty that a it was his motion to clean it off. It is is addressed to for continuance well settled rule in sound law Master trial of the discretion and that the and Servant that the master is not required court will not ruling of the be disturbed in give warning either or instfuction as showing apparent dangers .fálling the absence abuse of dis where "the Schuman’s, Missy working See Inc. perilous cretion: v. servant iri'á position, 211, Co., 44 Ky’ P.2d 862. Drews See or where the' fall was' caused a condi- 69, Curry, Chortney actually 99 v. 225 plain- P. known to servant or following ly effect: If obvious to him. any- there was defect 236 defect it obvious in, this ladder In CRAVENS’ ESTATE. re knew more about
the deceased 56 anyone in world. defects than else al. et IRELAND v. CRAVENS Servant, Master and 295 and C.J.S., §§ No. 35880. Notes 35 and 36. obviously dan- Supreme danger If here was as Court of Oklahoma. claimed, gerous there was as March employee of its exist- no need to warn Mfg. its or as to effect. Breece-White ence Baker, Cir., 106 8
Co. F.2d 815. P, Tackett, Phillips In
,2d 29, 31, opinion in an Court said legal that there was no ob- Welch Justice
ligation employer of the on employee danger to the
warn the where the
employee patent and obvious and
quoted from R.C.L. as follows: “ duty warning ‘There is no employee’s if are
instruction duties if
simple danger and the obvious possesses knowl- means he is sub- the risk to which edge of ”
jected.’ v. Lew This followed rule Janow where
is, we to warn his a master is not bound said patent dangers which are against
servant obvious. should municipality that a do not think I this kind where a case of liable in position to know
servant and did know if defective defective anyone else than its condition about
more danger- complained that was never ánd or defective.
ous its court abused opinion the trial my defendant a granting
discretion unavailability because of the continuance the de- who treated doctors one of testimony was of vital medical since ceased The deceased’s case. in this importance length of time *9 great such a came death and it deceased’s arm injury to
after death whether to determine difficult something injury or from the caused
else. that a demurrer think
IWhile should have been sus-
plaintiff's happen to the tained, that should worst granted. a new trial to have defendant’ would, be over- the trial .affirm To many errors. looking too dissent. forced to
I am