# Lusk v. Phelps

> Supreme Court of Oklahoma · April 9, 1918 · 71 Okla. 150

URL: https://www.frixlaw.com/law-library/cases/3798819

## Case

- **Full name:** LUSK Et Al. v. PHELPS
- **Court:** Supreme Court of Oklahoma
- **Decided:** April 9, 1918
- **Citations:** 71 Okla. 150; 175 P. 756; 1918 OK 204; 1918 Okla. LEXIS 895
- **Precedential status:** Published
- **Opinion:** Dissent by Sharp
- **Judges:** Sharp, Hardy, Rainey
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3798819

## Opinion text

SHARP, C. J.
(dissenting). I am unable to concur in the court’s opinion. Conceding that Myers, the fellow servant; was inexperienced in the use of explosives, it does not follow, and we may not infer that the accident causing the death of Phelps was in any way attributable to Myers’ inexperience or imcompetency. As I read the record, there was no testimony, either direct or circumstantial, that Myers was responsible for (he explosion, or that his acts in any way contributed thereto. Botili Myers and Phelps were killed in the explosion. Whether Phelps was killed as the result of his own or of Myers’ negligence, or Myers as the result of Phelps’ negligence, is. upon the record, purely a matter of speculation and conjecture. The opinion recognizes that there was no direct evidence of the accident, but ■says there were circumstances sufficient to justify the submission of the case to the jury. With this view I take issue, as.I do not consider the fact of the inexperience of the employes, together with the accident, proof of such facts or circumstances as would warrant 'the inference that Phelps’ death resulted by reason of the negligence of Myers, as charged. To enable an employe to recover of liis employer for injuries sustained through the instrumentality of a fellow servant, it is insufficient to show that the fellow servant was incompetent, and that the master was guilty of negligence in employing him. It must also appear that the fellow servant was guilty of some act of negligence or unskillfulness directly contributory to 'blue injury. Bailey on Master’s Liability, p. 7; Kersey v. Railroad Co., 79 Mo. 362 ; Johnston v. Railroad Co., 114 Pa. 443 , 7 Atl. 184 ; Gulf, Colorado
&
Santa Fe. Ry. Co. v. Schwabbe, 1 Tex. Civ. App. 573 , 21 S. W. 706 ; Fuller v. Margaret Mining Co.. 64 W. Va. 437 , 63 S. E. 206 ; Snodgrass v. Carnegie Steel Co.. 173 Pa. 228 , 33 Atl. 1104 .
I concur fully in the rule announced that negligence and proximate cause, being questions of fact, may bé established by circumstantial evidence, but differ as to the application of the rule to the uncontroverted facts. The burden .of proof being on the plaintiff, and it not being contended that the nature of the accident raised a presumption of negligence, there could properly be no recovery without evidence tending to show that the company’s negligence caused the intestate’s death. According to the evidence, Phelps’ death was the result of an unaccountable accident, and ini such circumstances the verdict should not be allowed to stand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3798819. Public record. Not legal advice.