Wentz v. Grimshaw

1954 OK 181, 271 P.2d 728, 1954 Okla. LEXIS 558

• Court: Supreme Court of Oklahoma
• Decided: June 8, 1954
• Docket: 35953
• Status: Published

Opinions

JOHNSON, Vice Chief Justice.

The parties will be referred to as they appeared in the trial court.

The essential facts germane to this appeal are that defendant Grimshaw Construction Company, a co-partnership, by contract constructed a concrete second floor in a certain building and left various openings to accommodate other fixtures to be installed later, one of which was approximately 3' x 4' wide and 30 feet above the concrete floor below.

Defendant allegedly did not (as it was evidently required to do, 65 C.J.S., Negligence, § 85, p. 593) provide railings or other safeguards, or otherwise properly and safely cover said opening, but negligently and carelessly placed planks crosswise over the opening which admittedly were not fastened down or made secure; that the boards used extended no more than one half inch to one inch over and beyond the edge of the opening on either side. No warning or notice of the dangerous condition was given by posting or otherwise. Plaintiff, an employee of A. M. Locket Company, who admittedly was rightfully working on the premises without any previous knowledge of the arrangement, stepped (as testified to by plaintiff and other witnesses) upon the unfastened loose boards which defendant had placed over the hole and the boards slipped out of place or gave way causing plaintiff to fall through the hole to the floor 30 feet below seriously injuring him. This, in substance, was the case as presented by the plaintiff. When the trial was concluded, the court sustained defendant’s motion for a directed verdict, and subsequently overruled plaintiff’s motion for a new trial.

It is argued that there is no evidence to show that defendant had the responsibility of covering and maintaining the covering over the hole or any admission of such responsibility on the part of defendant; that the evidence shows only that defendant’s employees built and placed over the hole a firm and substantial cover and that the cover was over the hole a few minutes before the accident happened, and by reason thereof the record sustains the action of the trial court. We do not agree.

Plaintiff’s position is that defendant owed the duty, both under the law and by contract to properly and securely safeguard and cover openings on the floor in the building under construction and that this duty rested at all times during the construction of the building upon defendant; that defendant admittedly placed the boards over the hole and that after the plaintiff fell through the opening the defendant immediately repaired the covering. These facts and circumstances tend to show that the defendant was performing a duty at all times both before and after the accident and would warrant the jury in finding that defendant was acting in line of duty and responsible for damages resulting from any negligence in performing said duty.

Granting that the defendant’s evidence reasonably tends to sustain the defense of contributory negligence and the defense that adequate provisions for the safety of others whom-the defendant knew might be obliged to walk across the 3' x 4' hole left by it in the second floor had been made, yet a conclusion to that effect by the trial judge would invade the province of the jury and constitute reversible error, where, as here, there was evidence and legitimate inferences reasonably tending to sustain plaintiff’s allegations.

This was an action at law triable to a jury; it was the duty of the trial court, when ruling upon the motion for a directed verdict, to disregard all the evidence unfavorable to the plaintiff and give him the benefit of all legitimate inferences, and, where there is any evidence in the record reasonably tending to support the allegations of the petition which would justify a verdict in favor of the plaintiff, it is error for the court to direct a verdict for the defendant.

We have carefully examined the record, and hold the evidence and legitimate inferences to be drawn therefrom sufficient to justify submission of the cause to the jury. Dake v. Finance Corp., 208 Okl. 116, 253 P.2d 842, and cases cited therein.

Reversed with directions to grant plaintiff a new trial.

HALLEY, C. J., and WELCH, WILLIAMS and BLACKBIRD, JJ., concur. CORN, DAVISON, ARNOLD and O’NEAL, JJ., dissent.