Barnard v. Waverly Brick & Coal Co.
| Decision Date | 03 May 1915 |
| Docket Number | No. 11548.,11548. |
| Citation | 176 S.W. 1108,189 Mo. App. 417 |
| Court | Missouri Court of Appeals |
| Parties | BARNARD v. WAVERLY BRICK & COAL CO. |
Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.
Action by Edward A. Barnard against the Waverly Brick & Coal Company. From judgment for plaintiff, defendant appeals. Affirmed.
Hadley, Cooper & Neel, of Kansas City, and Carl L. Ristine, of Lexington, for appellant. Chiles & Chiles, of Lexington, and N. M. Houx, of Lexington, for respondent.
Plaintiff, while working for defendant in a trench, was injured by the caving in of one side, and brought suit for damages. A demurrer was interposed to plaintiff's evidence. This the court overruled, and the defendant stood on its demurrer. Plaintiff obtained a verdict for $1,000, and defendant appealed.
The engine and boiler which furnished power to run the machinery of defendant's coal mine was on top of the ground a short distance from the mouth of the shaft. They rested upon a concrete foundation, and over them stood an engine room or shed. This last-named structure burned down some months before the occurrence of plaintiff's injury. In rebuilding it defendant desired to enlarge the engine foundation, and, to do so, constructed trenches outside of and on all four sides of the old foundation. These trenches had been dug, and on the morning of the accident had been completed. It was decided, however, to widen the trenches at the bottom so as to give the concrete foundation, which was to be poured therein, a "footing," and plaintiff was injured while shoveling out the dirt dug by another employs in making the extension for such footing. The ditches formed an oblong rectangle, and were about 3 feet in width, waistdeep in some places, but the least trench, where the accident occurred, was 5 feet or more in depth. In the outer wall or east side of the east ditch were one or more brick pillars a brick and a half square which had been a part of a former foundation; possibly piers on which had rested the posts of the burned engine room. These pillars extended down in the ground alongside the ditch to within 2½ or 3 feet of the bottom thereof. The undercutting ordered to be done by the defendant was made by digging out the dirt at the bottom of the trench and on the east or outer side thereof to a depth of 12 inches, and gradually sloping up to a feather edge about 10 inches above the bottom. It was therefore below, and did not extend up to the foot of the pillars.
On the morning of the injury defendant's foreman directed an employé, Demasters, to get down in the east trench and with a pick dig out the undercut. The foreman got into the ditch himself and showed how the work should be done. He also directed plaintiff how to follow Demasters in the ditch and shovel out the dirt excavated by him. Plain tiff obeyed, and while engaged in that work the bank on the east side suddenly and without warning caved in, burying Demasters completely, and plaintiff partially, with dirt and brick from the old piers. Plaintiff's leg was broken, and he was bruised and shocked and otherwise injured in minor particulars.
Defendant insists that its demurrer should have been sustained; that no case of negligence was made against the defendant; that the questions raised by the pleadings were not for the jury, because the plaintiff, as matter of law, was guilty of contributory negligence and assumed the risk.
If anything sufficient to defeat recovery may be chargeable against plaintiff, it would seem to be assumption of risk, rather than contributory negligence. The latter involves or connotes the idea that the servant either did something he should not have done or omitted to do something he should have done which in some way entered into and actively helped to bring about the unfortunate occurrence. But plaintiff did nothing to cause the dirt to fall. He was merely shoveling the loose dirt in the bottom of the trench. Neither did he omit the active performance of anything he should have done, since the fall came suddenly and without warning. So that, if recovery is to be denied plaintiff on account of anything affecting him, it would seem to be because of his alleged assumption of risk, rather than on the ground of contributory negligence.
With reference to the claim that no negligence was shown against the master, it is to be observed that plaintiff was directed by the foreman present and in charge of the work to go into the trench and shovel out the dirt. An excavation was being made in the side of the trench at the bottom which would leave the dirt wall on that side overhanging to some extent, and on this side were one or more brick piers the weight of which would be a factor in the fall thereof if it should fall. The piers were exposed to view in the trench and were above the excavation being made. The tendency to cave in could be avoided by propping the bank while the workmen were in the trench. If the conditions there were such that an ordinarily prudent man would have taken steps to obviate the fall, then defendant was negligent in directing the workmen to work therein without adopting such precautions. What an ordinarily prudent man would do under a given set of circumstances is usually a question for the jury. It certainly should be unless the facts are all so completely one way as to leave no room for fair minds to differ on the question. The excavation being under the side and under the brick piers mentioned, which would naturally have a tendency to induce a fall of that which was above, certainly we cannot say, as matter of law, that there was nothing in the situation which imposed on the master the duty of knowing whether it was safe or not. There is enough in the situation from which the jury could infer that the master was negligent in the premises. Defendant is in error in thinking there is no evidence tending to show that it was an unsafe place to work, or that the master, as a reasonably and ordinarily careful man, had no reason to apprehend danger therefrom. Such being the case, we are not permitted to take the determination of the question of defendant's negligence out of the jury's hands.
The fact that plaintiff made no complaint and received no express or affirmative assurance, in so many words, that it was safe, does not affect the matter, of charge him with assumption of the risk as matter of law. Plaintiff testified that he was watchful of...
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