Waddell v. A. Guthrie & Co.

• Decision Date: 23 December 1930
• Docket Number: No. 265.,265.
• Parties: WADDELL v. A. GUTHRIE & CO.
• Court: U.S. Court of Appeals — Tenth Circuit

45 F.2d 977 (1930)

WADDELL v. A. GUTHRIE & CO.

No. 265.

Circuit Court of Appeals, Tenth Circuit.

December 23, 1930.

D. M. Draper, of Salt Lake City, Utah (Samuel R. Thurman and Allen G. Thurman, both of Salt Lake City, Utah, on the brief), for appellant.

Paul H. Ray, of Salt Lake City, Utah (E. M. Bagley and Robert L. Judd, both of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

McDERMOTT, Circuit Judge.

In this action for personal injuries, the court directed a verdict for the defendant at the close of all the evidence. Whether there was error in so doing is the only point presented on this appeal.

The amended complaint sets out that the plaintiff was a rodman in the employ of the Bureau of Reclamation of the United States; that the defendant was engaged, under contract with the United States, in the construction of an outlet tunnel of the Echo Dam, a federal reclamation project in Utah; that plaintiff's duties required his presence in the tunnel; that, while properly in the tunnel, the roof gave way and seriously injured him; that defendant was negligent in failing to timber or support the roof; that such roof was in a dangerous condition, as defendant either did or should have known.

There was little conflict in the evidence on the trial. The tunnel was 838 feet in length, 13 feet in height, and 20 feet in width; it was a water tunnel, and somewhat oval-shaped. Construction was started from both ends in March, 1928; it was bored through on May 30; the trimming was completed June 20; later the tunnel was lined with cement. On June 26, while plaintiff was rightfully in the tunnel, a large chunk of the side wall sloughed off from a point about 5 feet above the floor of the tunnel; the material so sloughing was a red sandstone, some fine and some coarse, and one large rock, about a half-cubic yard in content, about 18 inches thick, somewhat wedge-shaped. There had been a clay seam back of the rock, which was not discernible when the rock was in place; the size of this rock was such that the sounding, hereafter described, would not and did not disclose the presence of the seam.

The tunnel was constructed by drilling 7-foot holes into the face of the rock; the workmen withdrew, the holes were shot; after the fumes cleared away the workmen returned, and, when 50 or 60 feet from the face, the roof and walls of the tunnel were sounded to determine their safety; this sounding was done by tapping with a metal bar; if a "drumming" sound resulted, the looseness thus indicated was scaled down until the workmen believed it safe to proceed; at places, where conditions indicated, the tunnel was timbered. By this method the roof and walls were inspected seven or eight times — 50 or 60 feet divided by 7, the length of the drill holes. All of the evidence disclosed that this was the customary and ordinary method of inspection used by tunnel builders, and it is not claimed that the defendant's employees were incompetent, or that they were not equipped with efficient tools. There was no timbering at the point of the accident, and no substantial evidence that any condition indicated a need for such. There was no evidence of any inspection after the tunnel was bored through, and no evidence that such a subsequent inspection was customary, necessary, or helpful; nor was there evidence that any inspection would have disclosed the clay seam back of the large rock, which very apparently was the cause of the accident. The efficiency of the inspection is indicated by the fact that no other sloughing occurred anywhere in the tunnel during its entire construction, even when the cement for the lining was applied with great force by compressed air. The evidence discloses that what timbering was done proved unnecessary.

The tunnel was bored through a soft sandstone and shale formation, with irregular clay seams; a geological examination indicated that the formation was a loose one; water appeared over the face of the tunnel in small seeps, and there was a water spring near the floor line of the tunnel, about ten feet downstream from the place of the accident. When the tunnel was bored through it was dry, excepting for this spring, and some moisture at an enlarged chamber 140 feet upstream from the place of the accident. While the effort is to blast out the rock as nearly as possible to the desired dimensions, or neat line, the effect of the blasting is irregular, and leaves projections inside the neat line which must be trimmed, and "overbreaks" or cavities outside the neat line which must be filled with cement. One of these overbreaks was in the roof at the scene of the accident.

There is no dispute about the law governing the case. The plaintiff may recover if there was negligence on the part of the defendant, and not otherwise. White v. Chicago G. W. R. Co., (C. C. A. 8) 246 F. 427; Leonard v. Miami Min. Co. (C. C. A. 4) 148 F. 827. Any conflicts in the testimony must be resolved in...