O'Neal v. Refuge Oil Co.

41 So. 67 | Miss. | 1906

Whiteield, O. J.,

delivered the opinion of the court.

The testimony shows beyond all controversy that the proximate cause of the death of O’Neal was the utterly defective and unfit hook used by this corporation in pulling cars in by the use of the capstan; as explained very fully in the record. The witness, Callahan, the chief engineer, shows that he improvised this hook; that it had been in use about one and one-half years before O’Neal was killed, and that the corporation had continued to use the same hook after his killing; that he (the chief engineer) had never cautioned anybody about handling that hook after O’Neal was killed; that he himself never knew that the hook was dangerous; never had any thought that it was dangerous, and never told Mr. O’Neal that it was dangerous. The witness Donovan shows, clearly and without any contradiction, that this improvised hook was utterly defective, and was very dangerous, and specifies the particulars wherein it was defective; the chief one being that the point of the hook was not long enough. He also states that it was not the “standard hook” in use by railroads for this business; that there was a standard hook for this particular purpose in use by railroads; that such standard hook had so been in use a number of years, and that the company should have known it, since the law and rules of the Master Car Builders’ Association required the use of a standard hook. He goes into a detailed comparison of the hook used, which killed O’Neal, and the standard hook, which should have been used, and his testimony condemns the hook used as utterly unfit and extremely dangerous, and further establishes the fact that, if the company did not know of the standard hook, it was guilty of gross negli-' gence in not knowing. So much for the fact that the hook was an utterly defective one, wholly unfit for the purpose for which it was used, and must have been so known to the defendant corporation, which nevertheless continued to use it after it had killed O’Neal, just as it had been used before, and that, too, without giving any warning of its dangerous character to employes.

O’Neal is shown to have been a sober, industrious, hard-working man, and, as shown by Callahan, when recalled, not “to have served his time as an engineer, but to have had only such experience as he picked up as he went along with his work.” It is perfectly obvious that the only defense that could be made was to show, if it could be shown, and to show clearly, that O’Neal had such knowledge of the defective character of the hook and tbe clanger from its use as would bar a recovery. On tbis point, Gallaban, tbe defendant’s chief engineer, testifies explicitly tbat be bimself did not know the book was dangerous, never thought of it as dangerous in bis life, and tbat be bad never told O’Neal or any one tbat it ivas dangerous. It is true tbat on bis cross-examination, when first introduced, an effort ivas made to show tbat, since O’Neal was “a stationary engineer,” and ivas “familiar with machinery,” consequently be bad “capacity to see bow tbe book worked,” and “in tbe course of his duty be bad occasion to observe bow tbe book worked,” and tbat be must have observed bow tbe book Avorked, etc. All these questions are merely general questions, and received merely general and inconclusive answers. Boiled down, all tbat was extracted from him on cross-examination amounted to nothing more, in any fair view of it, than tbat since O’Neal Avas a stationary engineer, and Avas familiar with machinery, and in tbe course of-bis discharge of bis duty Avould see tbe cars moved, and sometimes bimself moved them, necessarily be must have been familiar Avith tbe defect in tbe book and tbe danger from its use. But on 'redirect examination be was asked tbis question: “Q. "What did you mean Avben you said tbat Mr. O’Neal bad capacity to see bow tbat book Avorked ?” "A. I meant tbat be Avas familiar Avith machinery and all about it. What I mean is, tbe same difference between you and I, for instance, in regard to tbat machinery and plant and engine, etc.” A purely perfunctory answer. He was again asked: “Q. What do you mean by knowing bow tbat thing Avorked ? Do you mean tbat be knew hoAV to book on and turn on tbe capstan ?” "A. Yes, sir.” “Q. Do you mean anything else than tbat?” “A. No, sir; just a good, bright man.” “Q. You did not mean to say, by tbat expression, tbat be kneiv whether it Avas dangerous or not by looking at it, did you ?” "A. No, I did not mean tbat be knew it was dangerous. I never knew it.” It is perfectly obvious that tbe result of tbis witness’ testimony is tbe statement tbat be bimself did not know it Avas dangerous; never told O’Neal that it was dangerous, and that O’Neal did not know it was dangerous so far as the witness knew.

But, again, Callahan says, when recalled, that he never showed O’Neal the hook at all, and did not think of there being any danger from it. He says that he “took him around and showed him where to look out, but never showed him- that hook.” Indeed, Callahan shows that he worked in the daytime, and O’Neal at night, and he gives that as a reason why he did not see whether O’Neal himself put the hook on the car and moved cars with the hook. But, again — a most vital thing to notice — what precisely was O’Neal’s duty ? What precisely did he have to do ? It is very clearly shown by Callahan that it was O’Neal’s duty to stand by the capstan near the throttle valve and operate the capstan. He says: “A man took the line out and hooked it in the car.” Again he says that “the labor gang, the men who weigh in and out, etc.,” moved the cars. And when he was recalled he was asked: “Did Hr. O’Neal have anything to do with roping cars there — using hooks to rope cars ?” And he answered expressly, “No, sir,” and repeated the same answer to the question when repeated again. It is obvious enough that O’Neal could not operate the capstan, controlling the steam and the throttle valve, and do the other work of fastening the hook into the truck of the car to be moved, without loss of time. We think it is very clear from the testimony that his business was by the capstan, and that his duty was operating the capstan, and that putting the hook into the cars to be moved was a thing obviously to be done by the labor gang, as stated by Callahan. Surely, on this state of the testimony, it should have been left to the jury to say whether O’Neal had such knowledge of the defective character of this hook, and of the danger from its use, as would bar his recovery.

Reversed and remanded.