Showalter v. Fairbanks, Morse & Co.

• Decision Date: 02 October 1894
• Citation: 60 N.W. 257,88 Wis. 376
• Parties: SHOWALTER v. FAIRBANKS, MORSE & CO.
• Court: Wisconsin Supreme Court

88 Wis. 376

60 N.W. 257

SHOWALTER

v.FAIRBANKS, MORSE & CO.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from circuit court, Barron county; R. D. Marshall, Judge.

Action by W. M. Showalter against Fairbanks, Morse & Co., a corporation. Judgment for defendant. Plaintiff appeals. Affirmed.

This action is brought to recover for personal injuries. The evidence showed that the defendant, in August, 1892, was engaged in putting in a system of waterworks in the city of Rice Lake, and in the course of this work was excavating deep trenches and laying waterpipes through the streets. The plaintiff was employed by defendant, July 29, 1892, to calk the pipe in the trenches. One Elder was the superintendent of the work. Plaintiff began his work of calking pipe on the 30th of July, and continued at the work until August 4th. On the last-named day, while plaintiff, with one Simmons, was at work calking pipe in a trench about nine feet in depth, the sides of the trench caved in, and plaintiff was seriously injured. At the conclusion of plaintiff's evidence a nonsuit was granted, and from judgment thereon plaintiff appeals.T. F. Frawley, for appellant.

V. W. James, for respondent.

WINSLOW, J. (after stating the facts).

The nonsuit was granted on the ground that the plaintiff had assumed the risk. In order to fully understand this question a further statement of the facts in evidence is necessary. The proof showed that the plaintiff was a man 37 years of age, and of ordinary intelligence; that he had been employed laying and calking pipe for waterworks contractors, “off and on,” for several years, and in several cities; that when not engaged in this business he worked as a common laborer; that he had noticed trenches cave in a number of times in other places, and three times at Rice Lake, the last time being about 10 minutes before he was hurt; that he knew trenches not braced were liable to cave in, from experience; that the soil where the trench caved in was a clay soil about 18 inches in thickness, with sand and gravel beneath; and that the digging crew was about two or three rods ahead of plaintiff and Simmons, and a few minutes before the accident some sand fell from the side of the trench where the diggers were at work. When this happened the digging crew left the trench, and plaintiff and Simmons also got out because they were afraid it would cave in. The superintendent, Elder, and a foreman were on the ground when the plaintiff got out of the ditch. The foreman said he would not be afraid to lie down in the ditch all night, and would do so for a dollar and a half. Mr. Elder said: “Boys, go back to the ditch, and lay up to where the shovelers are, about three or four lengths. The ditch is perfectly safe. Go back and go to work. I will go right down to the office, buy lumber, and have it braced and curbed up.” Upon this plaintiff and Simmons went back to work because, as plaintiff says: “I took Mr. Elder's word. I thought he had more experience than I had, and I felt the bank was perfectly safe. I took Mr. Elder's word.” After they had been at work about 10 minutes the trench caved in, inflicting the injuries of which plaintiff complains.

Upon these facts we are clearly of opinion that the plaintiff must be held to have assumed the risk. He was of ordinary intelligence. He knew that trenches of this depth were liable to cave in. He knew that this very trench had just partially caved in at a distance of a few feet. He came out of the ditch because of that very fact. He knew all the facts which the superintendent knew, and had fully as much experience as the superintendent. No expert engineer could...