McCabe & Steen Construction Co. v. Wilson,
209 U.S. 275 (1908)

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U.S. Supreme Court

McCabe & Steen Construction Co. v. Wilson, 209 U.S. 275 (1908)

McCabe & Steen Construction Company v. Wilson

No. 155

Argued March 5, 6, 1908

Decided April 6, 1908

209 U.S. 275


Defendant who introduces testimony after the demurrer to plaintiff's evidence has been overruled waives any error to the ruling.

Where the cause of action is against the members of a copartnership who afterwards incorporate their business, themselves taking practically all the stock and continuing without changing their relations with employees, the fact that the suit is commenced against the corporation was held under the circumstances of this case, and in view of the fact that no testimony was offered, to be within the provisions of the Oklahoma statute, 146, art. 8, c. 66, Wilson's Ann.Stat., requiring the court to disregard, and not reverse for, defects of pleading or proceedings not affecting the substantial rights of the parties.

Where several instructions are asked and refused, exceptions must be taken separately and not as an entirety.

One employed as a fireman on an engine of a construction train held, under the circumstances of this case, not to be the fellow-servant of the foreman of the gang constructing the bridge which fell and caused the accident.

It is the duty of the employer to provide a suitable and safe place for the employees to work, and they are not charged with any responsibility in regard thereto, and while the employer is relieved if he does everything that prudence requires in that respect, it is largely a question of fact, and this Court will not, in the absence of convincing testimony, set aside the verdict of a jury approved as was the verdict in this case by the trial and supreme courts of the territory, especially where the accident was the result of recurring conditions.

A fireman, who, under the circumstances of this case, remains at his regular post where his ordinary duty calls him, is not guilty of contributory negligence because he does not avail himself of permission to occupy a different and perhaps safer place.

17 Okl. 355 affirmed.

On June 9, 1902, Wilson, the defendant in error, was injured by the giving way of a railroad bridge across the Canadian River in the Territory of Oklahoma. The bridge was on a new line of railroad, which was being constructed from Oklahoma

Page 209 U. S. 276

City to Quanah, Texas. The petition, filed October 18, 1902, in the District Court of the Third Judicial District, sitting in and for the County of Oklahoma, charged that the defendant, now plaintiff in error, was a subcontractor and constructing a portion of the railroad, including therein the crossing of the Canadian River; that Wilson was a locomotive fireman employed by the defendant. The circumstances of the injury were stated in the petition, and negligence on the part of the defendant was averred. A trial resulted in a verdict and judgment in favor of the plaintiff for $5,500. This judgment was affirmed by the supreme court of the territory (17 Okl. 355), and thence brought here by writ of error.

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