97 S.W. 998 (Mo.App. 1906), Kielty v. Buehler-Cooney Construction Co.

Citation:97 S.W. 998, 121 Mo.App. 58
Opinion Judge:GOODE, J.
Attorney:Holmes, Blair & Koerner for appellant. S. P. Bond for respondent.
Case Date:November 27, 1906
Court:Court of Appeals of Missouri

Page 998

97 S.W. 998 (Mo.App. 1906)

121 Mo.App. 58

KIELTY, Respondent,



Court of Appeals of Missouri, St. Louis

November 27, 1906

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald, Judge.


STATEMENT.--Respondent received personal injuries from a bank of earth falling on him while he was at the bottom of a sewer ditch. The appellant company was engaged in putting in a sewer on Florissant avenue in St. Louis in the spring of 1905, and had nearly one hundred men employed in the work. In digging the trench the earth would be taken out in sections four feet apart; that is to say, separate trenches sixteen feet long, four feet wide and fourteen feet deep were dug and a solid wall of earth four feet wide was left between them. When two sectional trenches had been dug the requisite depth of fourteen feet, tunnels would be excavated from one to the other at the bottom level, through the four feet of intervening earth, so as to connect the trenches and permit the laying of sewer pipes. The tunnels were excavated from the opposite ends of this solid partition, which is called a bulkhead; that is, half the tunnel was cut from one end and half from the other. Plaintiff was working on one of these trenches with an assistant named Holloran. They had dug the trench the required depth, and were ready to dig out the bulkhead so as to connect the trench they were in with the next one. Kielty was using a pick to loosen the earth, and Holloran was taking the dirt away with a shovel and throwing it on a platform about half way up the side of the trench, whence it was thrown by another workman on the surface of the ground at the top. Paul Cooney, a brother of the president of the defendant company, was foreman and in charge of the work, with authority to hire and discharge men and generally to control their operations. It is customary to brace the ends of the trenches with planks or boards so as to prevent caving; and the bulkheads or sections of earth left between the trenches might be braced too, if bracing appeared to be necessary to prevent them from caving. Kielty and Holloran began the excavation of the bulkhead about two o'clock in the afternoon, and when they had dug into it about a foot and a half, Cooney was at the top of the trench where they were at work. Kielty swore he said to Cooney the bulkhead or earth did not look very good and he (Kielty) wanted some more braces to put in to hold it. Cooney replied: "What is the matter with you; go ahead; you go to work; that is all right." This testimony is corroborated by Holloran, but denied by Cooney. The latter admitted that if he was around he would be the proper person for respondent to ask for bracing timbers, and that it was his (Cooney's) duty to see that the work was done right and the bracing made safe; that it would have been his duty, if asked by respondent for bracing material, to send it down to him; but said he did not have braces furnished for the bulkhead in question because he was not asked for them. He also admitted directing the bracing of the trenches on both sides as the work progressed; a statement which agrees with Kielty's statement that he (Kielty) put in bracing on the sides with the foreman standing over him, and did not brace the bulkhead at the same time because the planks were too short; saying it would have done no good to ask for longer planks while the foreman was there looking at the work; an expression which we take to mean that, as the foreman saw the planks were too short to brace the bulkhead and did not see fit, on his own motion, to call for longer planks, he would not have done so on a request from the workmen. Cooney further testified that he inspected the work, including the bulkhead that fell, from time to time, as it was part of his business to do; but that he did not pay any attention to the particular spot where the dirt caved, and saw nothing to indicate danger. Holloran swore he and respondent did all their work, including the bracing of the trench, under the foreman's orders, the latter directing where each brace should be placed. About half an hour after Kielty, according to his testimony, had requested bracing material to support the bulkhead, a mass of earth at the top of it became detached and fell on him, inflicting injuries. One witness for appellants, a workman in its employ by the name of O'Connor, swore he would not work where he thought there was danger of the earth caving in, even if he was ordered to do so, but he said the consequence of his refusal would be the loss of his job. Some testimony indicates the weather was rainy and the soil wet. For appellant the evidence was that the men were expected to watch the condition of the trenches as the digging went on, tap the...

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