The first ground argued in the petition for rehearing is the refusal of the court below to allow secondary evidence of the contract with William Kenefeck Company to be introduced.
Under the facts as set out in the original opinion, we are entirely satisfied that the opinion of this court was right upon this point, and cite as additional authorities in support of what is there decided: Simpson v. Dall, 3 *Page 527 Wall. 460, 18 L. Ed. 265; First Greenleaf on Ev. section 556; 2 Wigmore on Ev. p. 1407; Richardson v. Fellner, 9 Okla. 513,60 P. 270; Landon v. Morehead, 34 Okla. 701, 126 P. 1027.
The second ground on which the plaintiff in error asks a rehearing is that the court below committed error in refusing to give any of the instrucions requested by the plaintiff in error on the doctrine of independent contractor. In addition to the reasons given in the original opinion, the answer sets out that the plaintiff in error had let the contract for building its line of railroad in the State of Oklahoma to the William Kenefeck Company, an independent contractor; that the William Kenefeck Company, as an independent contractor, hired its own men and contracted to and did deliver said railroad, fully completed and ready for operation, to the defendant herein; that E.L. Webster was a subcontractor employed by J. W. Hoffman Co., and said J. W. Hoffman Co. was a subcontractor employed by Wm. Kenefeck Company, to construct culverts and bridges for the said line of railroad; and that the injury complained of was occasioned, if at all, by the servants, agents, and employees of the said E.L. Webster, and not by the act of any agent, servant, or employee of the defendant.
There was an entire absence of proof that the Kenefeck Company were independent contractors, and under this pleading, evidence that some one else was an independent contractor was not admissible. The proof must always accord with the allegations of the pleading, and, under the allegations in the answer that the Kenefeck Company were independent contractors, defendant will not be allowed to prove that Webster was an independent contractor. The doctrine is not disputed that, if a railroad *Page 528 company or other person employs an independent contractor (with certain limitations not necessary to be here set out), the employer is not liable for the acts of such independent contractor, but the case at bar does not present this situation, because there is an entire absence of proof to support the allegations of the answer that the William Kenefeck Company was an independent contractor.
It is also complained in the petition for rehearing that the court erred in not granting a new trial, because, at the time the application for a new trial was presented, the contract with the Kenefeck Company had been received. The facts are as follows: On the very day of the trial the defendant was allowed, over the objection of the plaintiff, to file an answer setting up the defense of independent contractor, and at this time announced itself ready for trial with no reservations. If the defendant did not have the contract with the Kenefeck Company in its possession, something should have been said at the time the case was called for trial. It appears that this contract was in the possession of the defendant, because it was received immediately after the trial, and there is no evidence which excuses the defendant in not having this contract at the trial. To allow a new trial under these circumstances would be an injustice to both the plaintiff and the public. The defendant had announced itself ready for trial, after the indulgence of the court in allowing it to file its amended answer, which was done over the objection of the plaintiff. The case went to trial, without a word of notice to the court that the defendant was not ready for trial, consumed the tithe of the court, and after verdict, and after the plaintiff had been to the expense and trouble of a trial, the defendant asked a new *Page 529 trial, because it had received evidence which was in its possession, and which it should have had at the time the trial was begun, or at least at the time at which it was required to introduce evidence.
Trials are serious things, and to allow a defendant to take the chance of getting his evidence in time, after announcing ready, and then to claim that it is prejudicial error, entitling him to a new trial, because his evidence does not arrive in time, would be, as above said, injustice to both the plaintiff, who has gone to the expense and trouble of summoning his witnesses and going through the trial, and to the public, the time of whose courts has been consumed in the litigation, which would be rendered useless if new trials are to be granted under such conditions.
The next assignment of error is that the demurrer to the evidence should have been sustained, because, taking the plaintiff's evidence, there is no actionable negligence shown. The facts, in brief, are that the plaintiff and one Robertson were engaged in hauling piles used in building a bridge of the railroad company. The evidence shows that these piles were from 25 to 60 feet long and from 12 to 20 inches in diameter; that they were in a pile where they had been unloaded and were near an excavation called a "borrow pit," and it was the duty of the plaintiff to haul them to a place where they were needed to go into the bridge. At the time the plaintiff was injured, he was directed to draw one of the piles in a southerly direction. At about the same time, but after the plaintiff had started to draw his pile, Robertson was drawing another pile in an easterly direction, which would take it across the course the plaintiff was going. It appears that these piles, as above set out, were near a *Page 530 "borrow pit" some five feet deep, and the plaintiff testified that, after he had gotten his pile he was drawing to the proper place, he stooped down to unhitch his team, when Robertson's team, or the pile he was drawing, hit the end of the pile to which plaintiff's team was hitched, and knocked it off the bank into the "borrow pit," thus causing the injury.
We agree with the plaintiff in error that the fact of the accident alone does not raise a presumption of negligence as between master and servant. C., R.I. P. R. Co. v. Watson,36 Okla. 1, 127 P. 693; Midland Valley R. Co. v. Conner, 217 Fed. 956, 133 Cow. C. A. 628; Patton v. Texas Pacific Ry. Co.,179 U.S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Pittsburgh CoalCo. v. Myers, 203 Fed. 221, 121 Cow. C. A. 427. In other words, the doctrine of res ipsa loquitur has no application as between master and servant. Patton v. Texas Pacific Ry. Co.,179 U.S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. But this rule has no application to the case at bar, because there was evidence of negligence independent of the injury. Reasonable minds might differ as to whether it was not Robertson's duty to have stopped his team until the plaintiff was in a place of safety, or, at least, to have taken some steps to prevent the pile which plaintiff was drawing from being hit and thrown down into the "borrow pit." From the plaintiff's evidence, to which the demurrer applies, it appears that Robertson drove his team across the pile to which plaintiff's team was attached, when this pile was on the bank of the "borrow pit," and drove his team in such a manner as to strike the pile to which plaintiff's team was attached, and thus the plaintiff was injured. Where reasonable minds may differ as to whether there was negligence or not, it is a question for the jury. Pittmanv. El *Page 531 Reno, etc., 4 Okla. 638, 46 P. 495; Neeley v. SouthwesternCotton Seed Oil Co., 13 Okla. 356, 75 P. 537, 64 L. R. A. 145; M., K. T. R. Co. v. Shepherd, 20 Okla. 626, 95 P. 243;Harris v. M., K. T. R. Co., 24 Okla. 341, 103 P. 758, 24 L. R. A. (N. S.) 858; St Louis S. F. R. Co. v. Williams,31 Okla. 450, 122 P. 152; Rock Island Coal Co. v. Davis,44 Okla. 412, 144 P. 600.
It appears that Robertson took no care or precaution whatever in the manner in which he drove his team to prevent the injury. It is not unreasonable to say that, when he saw his team approaching the pile which the plaintiff was drawing, it was his duty to stop until the plaintiff was in a place of safety, especially as the pile was near the "borrow pit," and could be easily thrown therein.
We have examined the other assignments of error, but they do not require any extended discussion.
We therefore recommend that the petition for rehearing be denied.
By the Court: It is so ordered.