(dissenting).
The majority opinion is incorrect because in. my judgment the trial court and the majority in this Court have lost sight of the decisive question in this case. It is. simply *334“What was the negligence of the defendant?” I say unqualifiedly that there was no negligence on the part of the Oklahoma Natural in this case and will endeavor to point out why. I think that this Court and the trial court were both misled by such statements that the defendant was flagrantly negligent but it was never pointed out how it was negligent.
The undisputed facts in this case show that the defendant desired to straighten a creek across which one of its lines was laid. Oklahoma Natural hired Bob Terry, a bulldozer owner, to cut a ditch with the bulldozer across a horseshoe bend in the creek. Mr. Hazard was District Superintendent for the defendant and the deceased, Hart-ing, was transmission superintendent under Mr. Hazard. Mr. Hazard, Mr. Harting and Mr. Terry met at the place where the ditch was to be cut near the bank of the creek. They discussed the job and what was to be done, where the ditch was to start and where to end, its width and its depth. This was a simple dirt moving job and the work in the ditch was to be done entirely with the bulldozer. John Place was employed by Mr. Terry as the operator of the bulldozer and did so operate the machine on the job. Mr. Harting showed Place where the channel was to be cut and a levee built on the north. The levee was necessary so a drag-line could come across and get clay out of the creek bed to put on the dike which was a part of the operation. The work with the dragline was moving so slowly that Harting asked Place if he could put the clay on the bank with the bulldozer and Place gave him an affirmative answer and the next day started moving dirt with the bulldozer onto the dike. He would cut into the side of the creek bank with the blade of the machine and knock the dirt down and then move it over the dike. It was a simple operation. No one instructed Place as to how he should operate the bulldozer. Harting only told him the job he wanted done and Place did it. Harting was the only employee in a supervisory capacity on the job. After Mr. Hazard left, which was immediately after the conference of Hazard, Harting and Terry on the morning of the first day, the work started. John Place was paid by Terry. Mr. Terry received $10 an hour for the machine and driver.
On the afternoon that Mr. Harting was killed Mr. Place stopped the bulldozer about six feet from the bank and Mr. Harting walked up to the machine annd placed himself between the machine and the bank with his back to the bank. After he had exchanged a few words with Mr. Place, the bank collapsed and Mr. Harting was injured by the dirt falling on him and death resulted four days later.
It is to be remembered that Mr. Harting was transmission superintendent. What all his duties were the record does not reveal but unquestionably he was in charge of this particular job. He had been with the defendant for twenty-seven years. He had started as a ditch digger and had various jobs and was experienced with work of the gas company, much of which is moving dirt. We are all familiar with the general rule that employer must furnish his employee a reasonable place to work but the employer is not the insurer of the life of the employee and does not have to furnish a place of work absolutely safe.
All Mr. Harting had to do on this job was to check and see if Place was staying on the job and conforming to his instructions. He had nothing to do with the actual operation of the machine or the moving of the dirt. He was not called upon to place himself in a position of peril by his duties. He could have done all that was required of him several feet back from the creek bank in a place of absolute safety. There was nothing hazardous about the work being performed. We held in Oklahoma City v. Caple, 187 Okl. 600, 105 P.2d 209, that the excavation of a sewer ditch is not inherently dangerous.
The majority opinion says it was a jury question as to whether this dirt that was being moved should have been analyzed to determine its qualities. It is ridiculous to think that in a simple dirt moving operation as this that the dirt would have to be first analyzed before it would be safe for a supervisor to go around the job. I venture that such an examination is never made on simple operations of this kind. The reason being that it' is wholly unnecessary.
*335The majority opinion talks of latent defects. What was there to indicate latent defects? It was held in Texas & N. O. R. Co. v. Sarver, Tex.Civ.App., 113 S.W.2d 317, that where there is nothing to indicate to an employer exercising ordinary care that latent defects exist he is under no duty to discover them. We think that this is a sound rule, especially as applied to this case, as the deceased was more familiar with the operations on this job than any person connected with the defendant.
The employer is not bound to warn and instruct an employee as to dangers which are patent and obvious. This was our holding in Janow v. Lewis, 197 Okl. 415, 172 P.2d 315, and Phillips v. Tackett, 168 Okl. 143, 32 P.2d 29. I say it was patent and obvious that a creek bank from which dirt is being knocked by a bulldozer may collapse. It has been held by courts of other states under fact situations very similar that the employer is not liable. In Village of Montgomery v. Robertson, 229 Ill. 466, 82 N.E. 396, it was held that the employer was not liable for injuries to the employee caused by the falling of overhanging banks in a gravel pit. In Hassett & Co. v. Richardson, 183 S.W. 900, 169 Ky. 342, the employer was held not liable for injuries to an employee caused by the fall of material during the operation of 'a steam shovel.
If the danger here was unexpected, improbable or unusual the master would not be liable. We have not said this but it is approved by many states and in Atchison T. & S. F. Ry. Co. v. Wyer, 8 Cir., 8 F.2d 30. See 56 C.J.S., Master and Servant, § 298.
This Court has held that where the servant has equal knowledge with the master the rule that the master must furnish safe tools does not apply. Nelson v. Wolverine Petroleum Corp., 189 Okl. 351, 117 P.2d 787, and Leierer v. Thompson, 190 Okl. 233, 122 P.2d 387. I think we should apply the same rule as to places in which to work.
I think the rule that is particularly applicable to this case is that where a servant knows and appreciates the dangers of his employment, the master is under no obligation to give warning and instructions thereof and a like result follows where by the exercise of reasonable • care the servant could have known of the dangers likely to be encountered by him. Again I say, M.r. Halting knew more of this situation than anyone in the defendant’s organization. He was the one who told Place to use the bulldozer on the dike. It is not clear from the record that anyone else employed by the defendant knew that the dozer would be used for such a purpose. The Supreme Court of Arkansas when considering a similar case said: “Where employee’s knowledge of the perils of the employment equal or surpass that of the master, then there is no duty upon the master to apprise the employee of somthing already well known to him”, J. L. Williams & Sons v. Tompkins, 195 Ark. 1146, 114 S.W.2d 845, 847, and in Tucker Duck & Rubber Co. v. Harvey, 202 Ark. 1033, 154 S.W.2d 828, said: “A master is not required to point out dangers where they are readily ascertainable by servant himself if he makes an ordinarily careful use of such knowledge, experience and judgment as he possesses, nor where servant had all means necessary for ascertaining the conditions and there was no concealed danger which could not be discovered.” What was there to this job that would challenge anyone to make a deep investigation as to the type of soil. It all could be moved by the bulldozer and there was no duty on deceased to get near the bank being hit by the machine.
This whole subject under consideration has received careful treatment in 56 C. J. S., Master and Servant and Sec. 295 covers the foregoing item.
The.fact that the employee here momentarily forgot the perils surrounding when he went to talk to Place does not show any fault on the part of the master. As has been said, who was to tell Mr. Harting not to get too near the bank. Certainly Mr. Hazard had no idea an experienced employee would get so near the bank. The above rule has been laid down in Fontaine v. Johnson Lumber Co., 76 N.H. 163, 80 A. 338. I think it is sound and applicable here.
Further this Court has held in City of Edmond v. Washam, 190 Okl. 140, 121 P.2d 300, and in Atchison, T. & S. F. Ry. Co., et al. v. Kennard, 199 Okl. 1, 181 P.2d 234, *336that the rule requiring the master to furnish a reasonably safe place for the servant to work does not apply to superior servants. Certainly under the facts in this case Mr. Harting was a superior servant. He was transmission superintendent and in full charge of this job.
But I say that ignoring all other considerations that the deceased was furnished a reasonably safe place to- work, that it offered no perils whatsoever in the carrying out of the duties that rested on him as it was not necessary for the deceased to place himself in a perilous position.
We know that as a general rule in order to show the master’s negligence the plaintiff must make an affirmative showing of actual knowledge on the master’s part of the danger or else proye facts which show that in the exercise of ordinary care he should have known it. If there was any condition here that was not known to Mr. Harting, it was a latent danger and the Oklahoma Natural would not be any more likely to know about it than he and certainly it would not have been discoverable on an ordinary inspection. I say that in this case where the selection of the place of work was left up to the employee as here that the master is not liable for injuries arising out of that selection of the place of work or danger arising in the progress of the work. In Kansas City M. O. Ry. Co. v. Bishop, 140 Okl. 277, 282 P. 1091, 1094, we denied recovery to a plaintiff in a case much stronger than the case at bar. There the plaintiff was engaged in building a concrete tank. This statement was made in that case:
“Could it be contended that the defendant did not furnish the plaintiff a safe place in which to work? These employees were engaged in removing a platform from the top of the tank. There was a constant change in the place due to their own labors in removing the parts of this structure. They were really dismantling the ’place,’ and the same became less safe as they proceeded to remove the boards from the stringers, for this made it possible for one to fall into the tank. But the nature of- the work that they were engaged in and their experience made it cleár that they were not engaged in a perfectly safe business. The man who puts a roof on a house, or paints a dwelling, or builds a chimney, is not engaged in a safe business, for he may fall; but, as we see it, there was nothing which the defendant did which made it unsafe, nor was any omission of defendant responsible for making the place more hazardous. * ⅜ ⅝ if
We are back again to the same proposition. From the standpoint of one engaged in a supervisory job, there was no danger in the work but' if it was dangerous no one for the defendant was in a better position to know it than the deceased.
I think that there were other errors in this case that would necessitate a new trial such as the improper argument by counsel for both the plaintiff and the defendant, Bob Terry.
I also regard the amount of damages allowed as excessive but since I am so firmly of the opinion that the demurrer to the evidence of the defendant Oklahoma Natural Gas Co. should have been sustained, I will not take up these other questions.
I dissent.