Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
On February 28, 1945, Richard Sheridan, hereinafter called the deceased, died of infuries received while engaged as an employee of Deep Rock Oil Corporation in repairing one of the company's steel tank cars.
On September 7, 1945, Lena Sheridan, widow of the deceased, instituted an action, as administratrix of the decedent's estate in the District Court of Payne County, Oklahoma, against Deep Rock, in which she sought damages in the sum of $2,950, by reason of pain, agony, and mental suffering by deceased prior to his death. The petition recited that the action was brought by her as administratrix of the estate of the deceased and for the use and benefit of the estate, and that he left as his sole and only heirs, his widow and three named sons.
The evidence adduced at the trial was substantially as follows. Deceased, a steel worker, had been an employee of Deep Rock for thirty years. On the day of the accident, he and a co-worker had been instructed by their foreman to repair the outlet leg and valve of a steel tank car. The car had been steamed out the day before to dissipate any gasoline fumes therein. On the morning of the day of the accident, the car was pushed into a shed to make the necessary repairs. The car was standing in a northerly and southerly direction. It was a standard car 42 feet long on which was placed a horizontal tank 6 feet and 7 inches in diameter. On top was a vertical cylindrical dome, 53 inches in diameter, with an opening at the top to permit room to enter the car. Along the side of the tank, mounted on brackets approximately 10 feet from the ground, was a board approximately 6 feet long, 12 inches wide, and 2 inches thick. It was commonly called a dome board. The distance from the center of this board to the crown of the tank car was 44 inches.A steel ladder was attached to the dome board and ran down the side of the tank car to a running board which was approximately at the base of the tank and ran the length of the car. There was also a steel ladder attached at the end of the car by which persons could ascend the car to the board walk along its side.
After the car had been pushed into the shed, deceased's co-worker placed a fourteen-foot ladder against the dome board. The ladder had a 2 inch steel spike in each leg at the base. It was a good substantial ladder with no defects in it. It had no attachments by which it could be clamped to the car at the top. The co-worker, carrying a shorter ladder which was to be placed inside the tank car, followed by deceased, ascended the ladder and entered the car. After remaining inside the tank car about twenty minutes they came out, descended the ladder and attached a long air hose to a pneumatic hammer called a rivet buster, which weighed approximately twenty-eight pounds. They then again ascended the ladder, the co-worker preceding deceased. The co-worker again entered the car and deceased handed him the rivet buster. The co-worker was in the car from fifteen to twenty minutes making the repair, at the end of which time he handed the rivet buster up to deceased. There was about 10 feet of hose inside the car while the repair was being made.When deceased was handed the rivet buster, he pulled out the hose that had been on the inside of the car.
The only person who saw anything of the accident was another worker working on the underpart of the car. He looked up and saw deceased falling when deceased was about six feet from the ground. He testified that deceased was falling in a southerly direction, with the ladder following him. The ladder fell on top of deceased after he hit the ground. There was some testimony that there was some frost on the dome board when the car was on the outside, but it may be fairly said that there was no frost on the dome board after the car was on the inside and when the employees ascended the ladder and entered the car. There was also testimony that deceased had ascended and descended such a ladder as this one approximately four or five times a day when such work was being done. So also, there was testimony that when ascending such cars, the employees at times used the steel ladder at the end of the car and at other times used a ladder such as this one. It is also quite clear that the choice of ladders to be used in ascending the cars in performing such work was with the employees and that they were not required to ascend cars by use of such ladders.
Plaintiff alleged, as grounds of negligence, that the dome board was frosty and slick; that the ladder had no means of being fastened to the dome board; and that Deep Rock failed to furnish deceased a safe place in which to work and safe appliances to work with and that this was the proximate cause of the injuries. At the close of plaintiffs case, a demurrer to her evidence was sustained and judgment was entered in favor of Deep Rock. An appeal was taken from that judgment to the Supreme Court of Oklahoma.
On February 26, 1946, while the appeal in the first case was pending in the Supreme Court of Oklahoma, appellant, as administratrix of decedent's estate, instituted this action in the same State Court. The complaint alleged that the action was brought for the use and benefit of the widow and three sons of deceased. In this action plaintiff sought damages for the wrongful death of deceased in the sum of $38,934, and for $813.30, for funeral and burial expenses. The complaint charged Deep Rock with the same acts of negligence that were charged in the first action. The action was removed by Deep Rock to the United States District Court for the Western District of Oklahoma. After such removal, Deep Rock filed an answer which, among other defenses, set up the judgment in the first action as a bar to the instant action, asserting that such judgment constituted an estoppel since the question of the company's negligence had been decided by that court adversely to appellee. Deep Rock filed a motion for summary judgment which was overruled by the trial court.
This cause was then tried to a jury. At the conclusion of appellee's testimony, Deep Rock moved for a directed verdict. This motion was overruled. At the conclusion of the trial, the case was submitted to a jury which returned a verdict for appellee for $2,500, plus funeral expenses of $775. Appellee's motion for a new trial was granted but the new trial was limited to the question of damages alone. The new trial resulted in a verdict for appellee this time for $18,000. Judgment was entered thereon and this appeal followed.
After the first trial in this case, but before the motion for a new trial was heard, the Supreme Court of Oklahoma decided the appeal taken from the judgment in the first case.*fn1 It affirmed the ruling of the trial court in that case in effect holding that appellee had failed to make a case of negligence against Deep Rock but that assuming there was some evidence of negligence, there was a complete failure to show a causal connection between the same and the resulting injury.
Numerous errors are urged for reversal. Among these are: (1) That the court erred in overruling appellant's motion for summary judgment; (2) That the court erred in denying appellant's motion for a directed verdict at the conclusion of the evidence; (3) That the trial court erred in granting a new trial limited to the question of the amount of damages alone.
It is our conclusion that the trial court erred in refusing to sustain appellant's motion for summary judgment. Two separate and distinct causes of action arose if the injury to and the death of the deceased was caused by the negligence of Deep Rock. One was for injury to his person, such as pain and suffering. This action, under the Oklahoma law furvives and may be brought notwithstanding the death of the injured person. 12 Okl.St.Ann. § 1051. The other, an independent cause of action, is for damages resulting from the death of the injured person. The damages in such a case inure to the exclusive benefit of the surviving spouse and children if any, or next of kin. 12 Okl.St.Ann. § 1053.
Construing these statutes, Oklahoma has held that the two causes of action are coexistent and that a recovery on the one does not bar the institution and maintenance of the other; that the damages to the estate in the one begin with the wrong and end with the death of the injured persons while damages to the designated survivors ...