De Ark v. Nashville Stone Setting Corporation

• Decision Date: 25 February 1955
• Citation: 38 Tenn.App. 678,279 S.W.2d 518
• Parties: Dora Mae DE ARK v. NASHVILLE STONE SETTING CORPORATION. Charles DE ARK v. NASHVILLE STONE SETTING CORPORATION. 38 Tenn.App. 678, 279 S.W.2d 518
• Court: Tennessee Court of Appeals

Page 518

279 S.W.2d 518

Dora Mae DE ARK v. NASHVILLE STONE SETTING CORPORATION.

Charles DE ARK v. NASHVILLE STONE SETTING CORPORATION.

38 Tenn.App. 678, 279 S.W.2d 518

Court of Appeals of Tennessee, Middle Section.

Feb. 25, 1955 Certiorari Denied by Supreme Court June 10, 1955.

[38 TENNAPP 680] George H. Armistead, Jr., Charles L. Cornelius, Jr., Nashville, for plaintiffs in error.

T. O. Morris, Joseph G. Cummings, Hume, Howard, Davis & Boult, Nashville, for defendant in error.

FELTS, Judge.

These two cases were tried together. Mrs. DeArk sued to recover for injuries sustained by her from falling into an excavation adjoining a sidewalk in Madison, Tennessee. Her husband, Charles DeArk, sued to recover for loss of her services and expenses incident to her injury.

The excavation had been made in the course of the construction of a building for the First American National Bank, the owner. The Bank employed R. C. Mathews, Inc., as its general contractor, to construct the building. Mathews employed Ira L. Hoffman as subcontractor, who in turn employed the Nashville Stone Setting Corporation to do a certain part of the work in and about the excavation.

The accident happened on December 17, 1952, at about 5:30 P.M.--after dark. The excavation, extending from the front wall of the building to the edge of the sidewalk, was uncovered, unguarded, and unlighted. Unaware of its presence, Mrs. DeArk, walking with her husband on the sidewalk, fell into the hole and sustained serious injuries.

[38 TENNAPP 681] The suits were brought against the Nashville Stone Setting Corporation and the other three named, the Bank, Mathews, and Hoffman, charging that they created and maintained near the sidewalk a condition which endangered persons lawfully using the walkway, and were thereby guilty of negligence causing the injuries sued for.

Before the trial began nonsuits were taken as to all of the defendants except the Nashville Stone Setting Corporation, and the cases went to trial against this defendant alone. At the close of the evidence for plaintiffs, the Trial Judge directed verdicts in favor of defendant Nashville Stone Setting Corporation and entered judgments dismissing the suits. Plaintiffs appealed in error.

They assign this action of the Trial Court as error; and the main questions debated by learned counsel are, whether in the circumstances in evidence, this defendant owed a duty of care to plaintiff; and if so, whether the evidence would have permitted a finding by the jury that defendant breached this duty and was guilty of negligence causing the harm sued for.

Learned counsel sharply differ in their views of the evidence and in their inferences therefrom. It is not for us, however, to settle such differences. That would have been the province of the jury. In testing whether a verdict should have been directed for defendant, we must view the evidence most favorable to plaintiff and allow all reasonable inferences therefrom in his favor. Smith v. Sloan, 189 Tenn. 368, 376-377, 225 S.W.2d 539, 227 S.W.2d 2.

The contract called for the construction of an ornamental stone flower box in front of the building. For this purpose, Mathews, the general contractor, dug a ditch about three feet deep and two or three feet wide, extending from [38 TENNAPP 682] the front will to the edge of the sidewalk. He laid a concrete foundation in the ditch, and his subcontractor, Hoffman, built a wall of concrete blocks up to the ground level, and defendant Nashville Stone Setting Corporation built a stone facing from the ground up to the height of the flower box.

This foundation and wall filled only a small part of the ditch and the ditch remained open while the work was being done. To keep pedestrians, passing along the sidewalk, from inadvertently stumbling or walking into this hole, Mathews put up barricades around it. But it was necessary to remove them during the progress of the work to enable the workmen to walk and work in and around the excavation.

In such a case, where a barricade is removed for a subcontractor, there is a custom of the building trade which makes it the subcontractor's duty, before leaving the site of the work, to replace the barricade for the protection of the public.

Plaintiffs offered evidence of this custom by the architect. But, upon objection of defendant, this evidence was excluded by the Trial Judge. We think this was error. The evidence of such a custom was competent and admissible as tending to prove the standard of conduct of reasonable men. Edmund M. Morgan, Basic Problems of Evidence (March 1954) pp. 181-182; Nashville, C. & St. L. Ry. v. Wade, 127 Tenn. 154, 159, 153 S.W. 1120, Ann.Cas.1914B, 1020.

This error, however, was not very harmful, because this custom was proved by other evidence without objection. Mathews testified that it was common practice for a subcontractor to remove a barricade in order to work in and around an excavation; and the witness Hagewood said [38 TENNAPP 683] that in such case it was standard practice for the subcontractor to replace the barricade before leaving the work.

On December 17th, the day of the accident, employees of defendant Nashville Stone Setting Corporation worked in and about this excavation, setting the stone veneering on the flower...