The points urged on rehearing were fully considered prior to and in the preparation of the original opinion herein, and all the propositions now urged by defendants are therein, either expressly or by necessary implication, overruled; but, in deference to the petition for rehearing, we will discuss briefly the principal questions therein urged.
The trial court, in effect, instructed the jury that there was no evidence of negligence, nor recovery allowable, on account of absence of proper shoring up of the wall of the trench, nor evidence that the clod, rock, or other substance that struck plaintiff came from a wall of the trench (which is the only specifically alleged causal negligence in plaintiff's petition), and submitted the case to the jury upon the question of negligence, barely suggested in the petition, in respect to a slide or roll of the substance or substances that struck him from the embankment of loose dirt, etc., on the surface of the ground, of which there is only the most meager and unsatisfactory circumstantial evidence which could possibly be allowed to be sufficient to take the case to the jury. In this respect the petition alleges:
"That the condition of said embankment [although there is no prior reference therein to any embankment], at the time of said injuries, at said point, and the accumulated dirt and other substance thrown thereon, were predisposed to slide or cave, and the failure of the defendants to remove or clear away the same, so as to prevent its falling into the ditch and injuring its employees, concurred with the carelessness and negligent acts hereinbefore or hereinafter alleged [although no related negligence is either before or after alleged] to bring about the result in *Page 111 the injuries to the plaintiff as hereinbefore and hereinafter alleged."
As imperfect as this allegation of negligence is, the trial court evidently construed it as sufficient to justify the instructions given, and submitted to the jury the question of defendants' negligence in failing to keep the embankment of loose dirt, etc., back from the edge of the trench, so as to retain the substances thrown out of the trench, and to prevent a slide or roll of the same therefrom, as a proximate cause of the plaintiff's injuries; and, in deference to the evidence, as unsatisfactory as it is, and to the action of the trial court in submitting this question to the jury, as well as in view of defendants' omission to raise the question by proper objections in the trial court, we do not think we should here say that there is no issue in this case involving a question of defendants' negligence in respect to such embankment. There was no motion to make the petition more definite and certain, nor other attack upon the same in this respect; and, in keeping with the spirit of the liberal rule under which pleadings have often been treated as amended to conform to the evidence, we have construed the pleadings as the trial court did, or at least assumed that the issue submitted to the jury is involved in this case.
In respect to the question as to whether the construction company was an independent contractor, the case of Chas. T.Derr Construction Co. et al. v. Gelruth, 29 Okla. 538,120 P. 523, upon a former appeal of the instant case, must be regarded as the law of this case; but we also direct attention to the case of Muskogee Electric Traction Co. v. Hairel, 46 Okla. 409,148 P. 1005. Counsel for defendants predicate their request for a reconsideration of the decision on this point in the appeal of Chas. T. Derr Construction Co., supra, upon what we think is an erroneous assumption *Page 112 that in that appeal this court predicated its statement that the contract provided that "the mayor and council should have full authority over said work, or they might delegate same to an engineer," alone upon the provision in the contract that "the mayor and council shall have full authority overamount of work that shall be under construction at any one time or place," etc., thus overlooking the qualifying effect of the word "amount" in the contract. But we assume that this court made said statement advisedly and upon a consideration of all the terms of the contract; and, upon the whole, it appears that the quoted statement of the court in this case on the former appeal is warranted by the terms of the same. In any event, the contention of defendants does not show that the contract, considered and construed as a whole, does not warrant said statement.
Among the terms of the contract tending to support the construction given, we find immediately preceding the above-quoted term of the contract, and as a part of the same sentence, the following language used:
"If mayor and council see fit at any time, they may submit to the contractor or [all] such orders, directions, and instructions as they may wish for the proper carrying out of his contract and contractor shall proceed to obey them," etc.
If, upon said former appeal, this court had erred in overlooking the word "amount," and its qualifying effect upon the clause first above quoted from the contract, such error should have been pointed out in petition for rehearing. In any aspect of the question, we think the points decided upon that appeal must be regarded as the law of this case. We find no reason for changing the conclusion reached in the original opinion. *Page 113
For the reasons stated, the petition for rehearing should be denied.
By the Court: It is so ordered.