Littig v. Urbauer-Atwood Heating Co.

• Decision Date: 31 December 1921
• Docket Number: No. 22983.,22983.
• Citation: 237 S.W. 779,292 Mo. 226
• Parties: LITTIG v. URBAUER-ATWOOD HEATING CO.
• Court: Missouri Supreme Court

237 S.W. 779

292 Mo. 226

LITTIG v. URBAUER-ATWOOD HEATING CO.

No. 22983.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Appellant's Motion to Modify Opinion Overruled February 18, 1922.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by John Littig against the Urbauer-Atwood Heating Company. Verdict for defendant, and from an order granting plaintiff's motion for new trial, the defendant appeals. Affirmed and remanded, with directions.

Plaintiff commenced this action in the circuit court of the city of St. Louis, Mo., on January 15, 1921. The case was tried on an amended petition, which alleges that defendant was a corporation, doing business in the city of St. Louis aforesaid; that on August 4, 1919, the date of plaintiff's injury, the defendant was engaged in laying and connecting underground sprinkling or sewer pipes, at what is commonly called the General Motors Plant, near Union avenue and the Natural Bridge road, in said city; that on above date plaintiff was employed by defendant, and was engaged in laying and connecting sprinkler or sewer pipes in a ditch that had been furnished by defendant in which to lay and connect said pipe; that said ditch was from 400 to 600 feet long, about 3½ feet wide, and about 5 feet deep; that about 10 feet south of where plaintiff was hurt a pit had been dug in said ditch, about 10 feet long, about 8 feet wide, and about the depth of said ditch; that said pit was dug to lay therein what was called "crosses" or "T's" and "elbows," used in connecting pipe; that on the east side of said ditch, from about the pit northward 20 feet, the east wall of said ditch had been dug under, or undermined, for about 10 or 12 inches, by digging on the side of said wall about 2 feet from the bottom, and sloping inward to the bottom of the ditch; that about 15 or 20 feet north of the point where plaintiff was injured, and near where the ditch had been undermined, a bridge had been built over said ditch, for use in hauling heavy truck and wagonloads of material. The petition alleges that on August 4, 1919, while plaintiff was at work for defendant laying or connecting pipe in said ditch, where the east wall of said ditch had been dug under, or undermined, the east wall caved in, and permanently injured him.

The petition further alleges that said ditch was undermined at the point aforesaid, to make it wider at the bottom, so as to make room for the pipe or pipes which plaintiff was laying, as the ditch was not wide enough at said point, as originally dug, to lay said pipe in the position that plaintiff was instructed to lay it; that, instead of digging the ditch wider at said point from top to bottom, so as to leave the walls perpendicular at said point, the defendant dug it wider at the bottom, by digging it under the east side of the ditch, or undermining it as aforesaid.

The petition then alleges that plaintiffs injuries were directly caused on account of the negligence of defendant in failing to furnish plaintiff a reasonably safe place to work, in this, to wit: That defendant knew, or by the exercise of ordinary care could have known, that the ditch where plaintiff was at work, and where it was undermined as aforesaid, was apt to cave in or fall, unless propped or supported or shored up; that defendant negligently failed to prop, support, or shore up the walls or side of said ditch, where it was undermined, thereby causing it to cave in or fall on plaintiff; that defendant knew, or by the exercise of ordinary care could have known, or should have anticipated, that there was danger of the wall or side of the ditch caving in, if dug under or undermined in the manner aforesaid, unless the side where dug under or undermined was supported; that had defendant exercised ordinary care for the safety of plaintiff, and other employés at work in said ditch, where it was dug under the side, or undermined, it should have either supported the east wall of said ditch or dug the ditch wider, instead of undermining it, so as to have left the wall perpendicular, but negligently failed to do so, thereby causing plaintiff's injuries.

The petition fully describes plaintiff's injuries, his physical condition, suffering, damages, etc., which will be referred to later. The petition concludes with a prayer for damages in the sum of $150,000, etc.

The answer, on which the case was tried, is simply a general denial.

The evidence, briefly stated, tends to show that on August 4, 1919, plaintiff was injured by a section of the wall trench or ditch suddenly caving in on him, and inflicting the injuries complained of in petition. At the time of said injury, defendant was installing, in the plant of the General Motors Company. in the northwest part of St. Louis, Mo., what is commonly known as an automatic sprinkling system, for protection against fires. In large plants much of the work is done in trenches, or ditches, where pipes are laid to connect with the city water system, to carry the water into the factory buildings. The grounds of the General Motors Company are very large, occupying several blocks. They are bounded on the east by Union avenue and on the south by the Natural Bridge road. The installation of the sprinkler system in this plant required the excavation of 600 or 700 feet of ditches, and the laying of pipes therein. The ditch in which plaintiff was injured extended from the National Bridge road north, about 300 or 400 feet. It was 42 inches, or 3½ feet wide, and about 5 feet deep. It was dug with a machine, gaged to cut a width of 42 inches. The excavated earth was thrown by the machine on the west side of the ditch. In this vicinity, before the accident, extensive strippings of the surface to a depth of from 10 to 15 feet had been removed, for the purpose of leveling the ground to the grade of the street. The soil in which the ditch was dug was a hard and compact clay, with seams in it. At the Natural Bridge road the ditch ran into a pit, which is described as a square hole about 10 feet by 10 feet, and a little deeper than the ditch or trench. Between 60 and 80 feet north of the pit a temporary bridge had been built over the ditch, by laying heavy stringers across it, and placing boards on top of same. The trench had been dug two or three weeks before the accident, and during that time this bridge was used by pedestrians, vehicles. and heavy loaded motortrucks, etc. No part of the ditch under or adjoining said bridge caved in. Three pipe lines, one 10 inches and the other two 6 inches each in diameter, were being laid in the ditch or trench. The pipes had been hauled into the grounds, and strung along parallel with the ditch and about 10 feet east of the ditch. When needed, these pipes were rolled to the ditch, and by means of ropes were let down from the east side into the ditch. The pipes were about 12 feet in length, and each weighed from 380 to 410 pounds. In laying the pipes in the ditch, it was necessary to calk the joints, in order to prevent them from leaking. Bell holes were dug in the sides and bottom of the trench, where the joints were made for the purpose of enabling the pipe fitters to do the calking. These bell holes were small excavations, but large enough to give the fitters room to use their arms, shoulders, and tools, in calking the joints. These excavations were at intervals of 12 feet extended about 3 feet up the sides of the ditch, were about 18 inches in width, and in the bottom of the trench were about 1 foot deep and 2 feet in width. The calking was done by first putting in yarn, and then tamping lead on top of the yarn. This was referred to by the workmen as "yarning" the joints, and was done with a hammer and chisel. At the time of the accident, at least two lines of pipe had been laid in the trench. The accident occurred about 11:30 o'clock in the forenoon. There were five men at the scene of the accident, and four of these were in the trench or ditch. At the time plaintiff was hurt he was down on his knees, astride the pipes, with his feet in the bell hole, calking a joint, when all of a sudden, and without any previous warning, about 25 feet of the east wall of the ditch caved in, part of it falling on his body, covering him over completely, and severely injuring him. Three of plaintiff's fellow workmen were also injured by the caving of said wall. The sides of the ditch or trench had not been propped or braced. It seems to have been practically conceded in the petition and by the evidence that, if the sides of the ditch had been dug perpendicularly in soil like that where plaintiff was working, it would not have been an unsafe place for pipe fitters to work. The petition alleges:

"That on the east side of said ditch, from about the pit northward about 20 feet, the easy wall of said ditch had been dug under or undermined for about 10 or 12 inches by digging up on the side of said wall about 2 feet from the bottom and sloping inward to the bottom of the ditch; that this was done in order to make the ditch wider, as it was too narrow at the point where undermined to lay the pipe or pipes in the manner plaintiff was instructed to lay them."

Dan Corcoran, who was at work in the ditch about 12 feet south of where plaintiff was hurt, testified, in substance, that the east wall of the trench was undermined, commencing at the bottom and extending about 24 inches above the bottom and back from said wall to a depth "of 22 inches; that the slanting began about 2 feet above the bottom of the ditch, and went back 22 inches; that it was undermined for a distance of from 60 to SO feet.

It appears from the evidence that Flotron, defendant's foreman in charge of said work, directed the laborers to do the undermining of the east wall. The men had a measuring stick 22 inches in length, and measured the depth of the undermining excavation as the work progressed. The evidence shows that the undermining was done before the pipes were put...