Gelruth v. Charles T. Derr Const. Co.

Opinion by THACKER, C. Plaintiff in error, as plaintiff in the trial court, sued defendants in error for damages for personal injuries alleged to have been suffered as a result of the negligence of the defendants in respect to clods of dirt and rock falling upon his head and back while he was bent forward at his work in the bottom of a sewer main trench, some 10 or 12 feet deep and about 20 inches wide, in the defendant city; and he appeals from a verdict and judgment against him. This case was before this court in Chas. T. Derr Construction Co. et al. v. Gelruth, 29 Okla. 538, 120 Pac. 253, in which a judgment for the plaintiff was reversed on account of error in the omission of the trial court to limit the plaintiff’s recovery for medical expenses and nurse hire to the amount claimed in his petition; and the case, having been remanded for another trial, in which the plaintiff lost, is now before us on a second appeal. The court instructed the jury as follows: “XI. You are instructed as matter of law that a servant, when he enters the service of an employer, impliedly assumes all risks which are ordinarily and naturally incident to the particular service in which he engages; and if you believe from the evidence that the injuries were only the result of one of the risks ordinarily incident to the work in which plaintiff was engaged, then he cannot recover in this case, and your verdict must be for the defendant.” (It will be noted that this concrete instruction imposes upon the plaintiff the assumption of all the risks which are ordinarily and naturally incident to the services and work of plaintiff in this particular case, not merely such as are ordinarily and naturally incident to this particular kind or class of services and work; and it does not require the *106 master to perform his duty in respect to a safe place in which and safe tools and appliances with which to work, and reasonably competent fellow servants, as a condition precedent to such assumption of risk by the plaintiff.) “XIV. If from the evidence you should believe that the plaintiff’s injuries, if any he sustained, were caused by a clod of dirt or other substance, which he was undertaking to throw out of the trench, falling back and striking him, you will return a verdict for the defendants. “XV. If from the evidence you believe that plaintiff was injured by a clod of dirt or other substance rolling off the bank and striking him, and the danger of such clod of dirt or other substance rolling into the trench was one of the ordinary hazards or risks incident to the employment in which the plaintiff engaged, you wiill return a verdict for the defendants. “XVI. If, from the evidence, you believe that the plaintiff’s injuries, if any he sustained, were caused by a clod of dirt or lump of sand rock, which the employees on the scaffold were throwing out of the trench, falling on plaintiff’s head, you will return a verdict for the defendants.” These instructions, especially XIV, are not only erroneous as relating to the question of whether the defendants were guilty of primary or actionable negligence, but they are erroneous as. trenching upon those defenses of contributory negligence and assumption of risk which, under section 6 art. 23 (Williams’, sec. 355) of the Constitution, shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury. In this connection it should be stated that the instructions given the jury nowhere informed it that these defenses of contributory negligence and assumption of risk are questions of fact which must be left to it. *107 Antedating or apart from law, one might, in fact, negligently contribute to his own injury, and by express or implied agreement assume the risk of the dangers of his employment of. which he has knowledge, and our Constitution recognizes and continues in force the defenses of contributory negligence and assumption of risk which the law from a very early time has allowed in deference to these facts; but these defenses are stripped of those legal rules or presumptions by which the judges were formerly wont to determine whether there was evidence thereof, and, if so, whether it would justify them in taking the entire question, or any part thereof, from the jury, and determining both the existence and the effect of such defenses, or of any phase thereof, as a matter of law. Chicago, R. I. & P. Ry. Co. v. Hill, 36 Okla. 540, 129 Pac. 13, 43 L. R. A. (N. S.) 622; St. Louis & S. F. R. Co. v. Long, 41 Okla. 177, 137 Pac. 1156, Ann. Cas. 1915C, 432; Osage Coal & Mining Co. v. Sperra, 42 Okla. 726, 142 Pac. 1040; Barnsdall Oil Co. v. Ohler, 48 Okla. 651, 150 Pac. 98. A master, who has exercised ordinary care to furnish and maintain for his servant a reasonably safe place in which, and reasonably safe tools and appliances with which, to work, and reasonably competent fellow servants, in cases in which the common law as to this subject is not abrogated, under section 36, art. 9 (Williams’, sec. 254) of the Constitution, owes such servant no further duty, and therefore cannot be held liable to him in damages for any injury due to the ordinary risks or hazards of his service under such conditions, and as a fnere corollary, or as the converse statement of this rule, it may be said as matter of law that the servant assumes all such risks or hazards; but this species of assumption of risk, when affirmed, merely negatives the existence of primary or actionable negligence on the part *108 of the master, and should not be, as it often is, confused with that other species which, under section 6, art. 28 (Williams’, sec. 355) of the Constitution, is a distinct defense as against and notwithstanding such negligence. In leaving this defense to the jury, it may be doubted if the court should do more or less than define it and advise the jury of its effect (see the St. L. & S. F. Ry. Co. Case, supra, and the Osage Coal & Mining Co. Case, supra); and it would not be necessary, if advisable, to instruct the jury as to the first-mentioned species of assumption of risk, if the jury were properly informed that there can be no recovery against the defendants, because there can be no breach of duty nor actionable negligence arising thereon, in respect to the ordinary risks or hazards of the service, if the master has exercised ordinary care to furnish and maintain for his servant a reasonably safe place in which, and reasonably safe tools and appliances with which, to work, and reasonably competent fellow servants. The subject of inquiry is the conduct of the master, his duties and liabilities, in determining whether there is primary or actionable negligence in the case; and it is easy enough to instruct as to that, without reference to the risks assumed as matter of law by the servant — that is, by instructing upon them as risks not assumed by the master, or, in other words, as risks for which the master is not liable. If the trial courts would confine their instructions for the guidance of juries In determining the question of primary or actionable negligence of the master to the duties and liabilities of the master, without affirming anything of the servant in that connection, and then define contributory negligence and assumption of risk, and advise the jury of its effect, and that it is a question of fact for them, we believe much danger of confusion and risk of error would be avoided. *109 „ If the plaintiff was injured by a elod or other substance which he threw out, and which fell back into the trench oh him, it does not necessarily follow that his act was the sole proximate cause, nor an independent intervening cause, of his injury; nor could the court say, as matter of law, that it was a negligent and contributing cause. The defendants’ negligence might, nevertheless, have caused the clod or other substance to fall back, or have caused plaintiff to be in a position to be struck and injured by it, as it seems to have been their duty to exercise ordinary care to keep the dirt, etc., that had been thrown out of the trench far enough back from its edge to leave a surface which would be reasonably suited to retain it. The mere fact that plaintiff may have thrown the clod or other substance out of the trench does not negative the possibility of primary or actionable negligence on the part of the defendants as a proximate cause of its falling back or of its striking plaintiff; and it certainly cannot be said, as matter of law, to have been contributory negligence or any negligence at all. We have seriously considered whether the errors pointed out are not harmless, for want of any evidence reasonably tending to prove any negligence on the part of the defendants which was a proximate cause of plaintiff’s injury; but, as this court sent the case back for another trial when it was here before, and we are not ourselves quite convinced that the evidence is not sufficient to take the case to the jury, we will assume, without deciding, that it is sufficient for that purpose. For the reasons stated, the judgment of the trial court should be reversed, and the case remanded for another trial.