He testified that under the rules of the company he could not leave the pipe out of the hole while the crew went to eat; that he was running the pipe in accordance with his instructions, before eating; therefore, the speed at which the men were working was not a matter of convenience on the part of the crew, but was governed by the rules of the company. The law with reference thereto is governed by the opinion of this court in the case of St. L. S. F. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. The duty of providing a reasonably safe place to work, reasonably safe appliances for doing the work, and a reasonably safe method of doing the work, are nondelegable duties; a verdict in favor of the servant does not exonerate the master, when an injury results from negligence growing out of one or all of these nondelegable duties.
Where the trial court in stating the issues to the jury quotes extensively from the pleadings and substantially states the issues, and opportunity is given counsel to inspect the instructions prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved. St. Louis-S. F. Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835; St. Louis-S. P. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. 3. Trial — Refusal of Requested Instructions Which Require Modification.
Restatement, Torts, § 283. "Contributory negligence is * * that want of ordinary care, upon the part of the person injured by the negligence of another, which, combined and concurring with the negligence of the defendant, proximately contributes to the injury." St. Louis-San Francisco R. Co. v. Bryan, 113 Okla. 39, 237 P. 613; St. Louis-San Francisco R. Co. v. Eakins, 141 Okla. 256, 284 P. 866. The duties resting upon each party depend on the conditions and circumstances.
We do not believe that we can properly conclude that such a general verdict is entirely outside the issues in the case within the rule of the cited cases, and the company has given us no authorities which would justify any such conclusion here. No showing is made that the company's rights are in any way prejudiced by the failure of the jury to find with plaintiff that the engineer was negligent, and render judgment against him also. Our conclusion that no error is shown in that regard is supported by Kurn v. Campbell, 188 Okla. 636, 112 P.2d 386; St. L.-S. F. Ry. Co. v. Bell, 134 Okla. 251, 273 P. 243; St. L.-S. F. Ry. Co. v. Simmons, 116 Okla. 126, 242 P. 151, and St. L.-S. F. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. The company next contends that there was reversible error in the admission of opinion evidence in that the province of the jury was invaded.
But even though the instruction is defective in this respect, we do not see how the jury could have been misled thereby where, as here, the jury is clearly and plainly instructed that to find for plaintiff they must find that the act was the proximate cause of the injury. The inference is so clear that under any other circumstances, that is, if the injuries resulted from any pre-existing cause, the jury must find for defendants, that we do not think the judgment should be reversed for this reason. St. Louis-San Francisco Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. (d) Defendants complain of the giving of instruction No. 10, defining an act performed within the scope of employment and stating that the burden is on plaintiff to prove that Ketzler's acts were performed within the scope of his employment, and that if plaintiff failed in such proof by a preponderance of the evidence, the verdict should be for defendants. Defendants point to Ketzler's special deputy sheriff commission and then say that at the time of the transaction complained of he was acting in a public capacity.
A similar contention was made in the case of St. Louis S. F. Ry. Co. v. Simmons, 116 Okla. 126, 242 P. 151, which we herein adopt as applicable. See, also, Chicago, R.I. P. Ry. Co. v. Pedigo, 123 Okla. 213, 252 P. 1095; St. Louis S. F. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866. Both the engineer and the fireman testified that the train was scheduled to make a speed of about 60 miles per hour at the place where the collision occurred, and that the train was actually making about 55 miles per hour when it struck plaintiff's automobile.
"Where the pleadings are voluminous and involved and the court does not state the issues in its instructions to the jury, it is reversible error to submit the pleadings to the jury for them to determine what the issues are." On the other hand, counsel for the plaintiff call attention to the cases of St. Louis-San Francisco Ry. Co. v. Routh, 133 Okla. 168, 271 P. 835, and St. Louis-San Francisco Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866, to which this court expressly declined to apply the above-quoted rule. Our decisions in the latter cases are in accord with the general rule that a judgment will not be reversed on account of the giving of erroneous instructions, where the party complaining of such errors failed to request correct instructions and it does not appear that his rights have been prejudiced thereby.
The Atlas Acceptance Corporation contends that this error on the part of the trial court was waived by the plaintiff, Hinds, when counsel for Hinds on cross-examination re-examined the witness upon the same subject. In support of this contention our attention is called to the case of St. L.-S. F. Ry. Co. v. Eakins et al., 141 Okla. 256, 284 P. 866, in which the following rule was announced in syllabus 8 by the court: "Ordinarily, error cannot be based upon the admission of testimony elicited on cross-examination, as in the instant case, concerning a matter brought out on direct examination by the complaining party."
"Where the trial court, in stating the issues to the jury, quotes extensively from the pleadings, and, substantially, though not accurately, states the issues, and opportunity is given counsel to inspect the instructions, prepared by the court, and is given opportunity to prepare instructions, and counsel fails to submit any instruction defining the issues, a case will not be reversed for failure of the court to accurately define the issues involved." St. Louis-S. F. Ry. Co. v. Eakins et al., 141 Okla. 256, 284 P. 866. "Where the trial court substantially, though not entirely accurate on all points, states the issues arising on plaintiff's pleading or evidence, and it does not appear that the jury were misled thereby or misunderstood the issues, and the party who took exception to the statement or instruction fails to submit any instruction defining the issues, such case will not be reversed on appeal on the ground that the court failed to properly define the issues involved."
Defendants complain that the court refused to give their requested instructions Nos. 5 and 7. These two instructions attempted to set out certain specific and given states of facts as contributory negligence and would have told the jury that if they found these facts to be true, then their verdict should be for the defendants. In the case of St. L. S. F. Ry. Co. v. Eakins, 141 Okla. 256, 284 P. 866, this court said: "The requested instruction in effect would have advised the jury that, if they believed and found a certain state of facts, then the deceased would have been guilty of negligence, either primary or contributory, and the plaintiff by reason thereof could not recover, although the railway company also be guilty of negligence. Under the ruling and authorities of the last above-quoted cases, such instruction would have been an invasion of the province of the jury and was unwarranted under the particular evidence."