The defendant in error, H.B. Warren, commenced this action in the district court of Pottawatomie county, seeking damages from the plaintiff in error, Chicago, Rock Island Pacific Railway Company, for injuries to his left eye, resulting in the loss of the sight thereof, which occurred on May 1, 1911, while employed by the defendant as engine watchman at the roundhouse of the defendant at Haileyville, and at the trial of the case recovered judgment in his favor.
The only errors assigned are the giving of certain instructions and abuse of discretion upon the part of the trial court in overruling the motion for a new trial.
Instruction No. 3, the giving of which is urged as error, is as follows.
"It is the duty of the master to furnish the servant with a reasonably safe place in which to work and with reasonably safe appliances with which to work, and the servant has the right to rely on the master having performed his duty in that respect."
This instruction is subject to criticism in that it informed the jury that it was the duty of the master to furnish the servant a reasonably safe place in which to work instead of stating that the master was required to use ordinary care in furnishing the servant with a reasonably safe place to work; but the two ways of expressing the master's duty in this regard are used interchangeably in the text-books and authorities throughout the country and in this state, and an instruction couched in this language is not reversible error in view of the following decisions by this court: Chickasaw Compress Co. v. Bow, 47 Okla. 576, 149 P. 1166; Frisco Lumber Co. v. Thomas,42 Okla. 670, 142 P. 310; Frederick Cotton Oil Co. v. Traver,36 Okla. 717, 129 P. 747; Great Western Coal Coke Co. v. Malone, 39 Okla. 693, 136 P. 403; Great Western Coal Coke Co. v. Serbantas, 50 Okla. 118, 150 P. 1042.
In instruction No. 9 the court told the jury: "The railway company is not an insurer of the employe against accidents, and its duty is completed if it exercised a high degree of care in furnishing appliances which are reasonably safe."
Taken alone, the language quoted is not an accurate statement to the jury of the duty owing by the master to the servant. The correct rule in this respect is that the master is required to use ordinary care and diligence to provide the servant with appliances that are reasonably safe and is not required to use a high degree of care. This rule has been announced so often and become so firmly established in this state that citation of authorities in support thereof is unnecessary. The vice of this instruction was minimized by the court stating in the same connection and in other paragraphs of the instruction what the master's duty was, as we have above stated, and the phrase criticized should be read in connection with the context and with the instructions as a whole, and by so treating them we find that the court gave the jury a correct statement of the law, and for the error in giving the instruction criticized the case should not be reversed, unless from an examination of the entire record it appears that a litigant has been deprived of some substantial right, or that the trial has not resulted in justice. First National Bank v. Ingle, 37 Okla. 284,132 P. 895; Great Western Coal Coke Co. v. Serbantas, supra.
Error is also assigned upon the refusal of the court to direct a verdict for the defendant upon the ground that the risk of the employment was assumed as a matter of contract, and that plaintiff was precluded from complaining of the injury which he claims to have received. There was no error in refusing to direct a verdict. In this state the doctrine of the assumption of risk as it existed at common law affecting railroads, street railways, etc., has been modified. Williams' Annotated Const., sec. 254. Where the question involved is whether the employe received the injuries complained of as a result of a risk that he assumed expressly or impliedly, and which injuries resulted from some omission of duty upon the part of the master to the employe not in violation of some statute, the question is one of fact and should be referred to the jury for its determination. C., R.I. P. R. Co. v. Duran,38 Okla. 719, 134 P. 876; St. L. S. F. R. Co. v. Long,41 Okla. 177, 137 P. 1156, Ann. Cas. 1915C, 432.
It is further urged that the trial court committed an abuse of discretion in failing to grant defendant's motion for a new trial, and in support of this assignment it is made to appear that in passing upon the motion for new trial the court declined to weigh the evidence and either to approve or disapprove the verdict upon the theory that the extent of his authority in passing upon said motion was to determine whether the jury had manifestly overlooked some fact that was proven, *Page 192 and which had they not overlooked the verdict would reasonably have been the other way; the court at the same time announcing that, had the matter been submitted to him, he would have reached an opposite conclusion, and that the jury had arrived at a different view of the facts from that which he had arrived at.
The pivotal point in the case was whether the water gauge of the engine in question upon which plaintiff was employed as a watchman had a water glass shield on it when brought from the roundhouse and delivered to plaintiff on the night he claims to have been injured. Plaintiff testified that there was none on the engine when he got on it to examine the water gauge at the time the accident occurred which resulted in his injuries. The evidence for the defendant tends to show that it had such a shield when it came into the roundhouse Saturday night, and the hostler testified that he saw one at 6:30 p. m. the Sunday just before the plaintiff went on it. The roundhouse foreman testified that he was on the engine a few moments after the accident, and found a shield in the stand for the oil calls but a few inches from the place where the glass was. The same shield, which was the usual type, was seen early the next morning by the hostler who had seen one on the engine at 6:30 p. m. Sunday. The hostlers who loaded the coal and water in the engine testified that they took no shield off the engine during the night prior to the accident.
It was the duty of the trial court, when the correctness of the verdict was challenged on the ground that the evidence was insufficient to support it, to carefully weigh the evidence and determine whether the verdict, in his judgment, was right and substantial justice had been done between the parties. This the court declined to do upon the erroneous view of the law that it was not his duty and that he was without authority so to do.
In Yarnell v. Kilgore, 15 Okla. 591, 82 P. 990, in discussing the duty of the trial court when called upon to pass up a motion for new trial, Justice Burwell, speaking for the court, said:
"The approval of a verdict does not mean that formal approval which is inferred from the act of rendering judgment on it; but it means the assent and approval of the mind, after due consideration; and when the mind of the court refuses to concur in the correctness of the verdict, and its honest convictions lead it to believe that it ought to have been for the other party, then the verdict is not supported by the evidence so as to merit its approval, for in passing on a motion for a new trial it is the court and not the jury that must weigh and determine the effects of the evidence."
And this court in Hogan et al. v. Bailey, 27 Okla. 15,110 P. 890, said:
"The trial court has a higher function under our jurisprudence than to act merely as a moderator or umpire between contending adversaries before a jury. Not only is it charged with the duty of seeing that the course and conduct of the trial gives to each of the litigants a fair opportunity to present his cause and to have the facts weighed in the light of proper instructions declaring the law relative thereto, but it is the imperative, abiding duty of the court, after the jury has returned its verdict and awarded to one or the other success in the controversy, where the justness of the same is challenged as in this case, to carefully weigh the entire matter, and unless it is satisfied that the verdict is responsive to the demands of justice, to set the verdict aside and grant a new trial. Not only must the jury be satisfied of the righteousness of the conclusion to which it arrives, but, unless that conclusion meets the affirmative, considerate approval of the mind and conscience of the court, it should not, where challenged, be permitted to stand. Yarnell v. Kilgore, 15 Okla. 591, 2 P. 990; Trower v. Roberts,17 Okla. 641, 89 P. 1113; Ten Cate v. Sharp, 8 Okla. 300, 57 P. 645; City of Sedan v. Church, 29 Kan. 190; Citizens' State Bank of Lawton v. Chattanooga State Bank, 23 Okla. 767, 101 P. 1118, and cases therein cited."
In Rison v. Harris, 50 Okla. 764. 151 P. 584, it was said:
"It is plain from the language used by the trial judge in the case at bar that he has not followed the rule laid down in the above cases. It is equally clear that he was not satisfied with the verdict, because he says, in effect, that it was his opinion that, where the issue of fact was submitted to the jury, and they passed on it, it was his duty to permit the verdict to stand, although he was not satisfied with its justness. The cases above cited clearly indicate that he took a wrong view of his duty in the premises."
Other decisions by this court following the rule announced in the foregoing opinions are: White v. Dougal, 60 Okla. 200,159 P. 907; Horton v. Prague Nat'l Bank, 60 Okla. 240,159 P. 930.
Our procedure act is exactly the same as that of Kansas (Yarnell v. Kilgore, supra), and the Supreme Court of that state has in a number of cases passed upon the point here considered, and its decisions support the position here taken. Williams v. Townsend, 15 Kan. 563; Kansas Pac. R. Co. v. Kunkel, 17 Kan. 145; State v. Bridges, 29 Kan. 138; M., A. B. R. Co. v. Keeler, 32 Kan. 163, 4 P. 143; A., T. S. P. R. Co. v. Dwelle, 44 Kan. 394, 24 P. 500; K. C., W. N.W. R. Co. v. Ryan, 49 Kan. 1, 30 P. 108; C., R.I. P. v. Reardon.1 Kan. App. 114, 40 P. 931; Cherokee P. Coal Min. Co. v. *Page 193 Stoop, 56 Kan. 426, 43 P. 766; Ireton v. Ireton, 62 Kan. 358, 63 P. 429.
The reason for this rule is that in the Supreme Court, when the jury have found a verdict which is reasonably supported by the evidence, and that verdict has been approved by the trial court, this court will not weigh the conflicting evidence to determine whether the verdict is right because that duty in the first instance is imposed upon the trial court. We do not see the witnesses testify, and cannot observe their demeanor or manner of giving their testimony, and are not in position to judge of their credibility, as is the jury and the trial court, and applications for a new trial, when addressed to the trial court, should be favored, and where the trial court does not approve of the verdict, within the rule announced in the above decisions, the motion should be granted. In this case the court did not exercise that discretion which it was its duty to do, but declined to weigh the evidence and approve the verdict, although it appears that the verdict as found by the jury did not meet with his approval.
This duty of the court does not prevent his yielding his impression or opinion and adopting those of the jury, if upon consideration of the evidence the court is of the opinion that the verdict is right, and by reason thereof yields his own opinion to that of the jury, and, so yielding, approves the verdict.
In Railway Co. v. Kunkel, 17 Kan. 172, it is said:
"We do not mean that he is to substitute his own judgment in all cases for the judgment of the jury, for it is their province to settle questions of fact; and when the evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions thereon, he has no right to disturb the findings of the jury, although his own judgment may incline him the other way. In other words, the finding of the jury is to be upheld by him as against any mere doubts of its correctness. But when his judgment tells him that it is wrong, that whether through mistake, or prejudice, or other cause, the jury have erred, and found against the fair preponderance of the evidence, then no duty is more imperative than that of setting aside the verdict and remanding the question to another jury."
In Serles v. Serles, 35 Or. 289, 57 P. 634, in discussing a similar question, it was said:
"It must be understood, of course, that a mere dissatisfaction of the judge with the verdict is not sufficient ground for disturbing it, but the court must exercise its judgment in each particular case, and if, from all the testimony given the jury, it is satisfied that the verdict is against the clear weight or preponderance of evidence, or that the jury has acted unreasonably in returning the verdict, or has been misled or misdirected, or has acted through improper motives, it is the duty of the court to set it aside and grant a new trial."
In the case at bar the plaintiff in error was entitled to have its motion for a new trial passed upon in accordance with correct principles of law, and was entitled to have the court weigh the evidence and determine independently for itself whether the verdict met with its approval, and the trial court having failed to weigh the evidence, as was its duty to do, and either approve or disapprove the verdict, in accordance with the rules herein announced, upon the mistaken theory that it was without authority so to do, the plaintiff in error was deprived of a substantial right to which it was entitled under the law, and because of the failure to do so, and owing to the objectionable form of the two instructions considered and the fact that there was a sharp conflict in the evidence, and that the verdict of the jury apparently did not meet with the approval of the trial court, the case is reversed, and remanded for a new trial.
KANE, C. J., and SHARP and TURNER, JJ., concur.