Benson v. Brady

• Decision Date: 31 March 1953
• Docket Number: No. 7891,7891
• Citation: 73 Idaho 553,255 P.2d 710
• Parties: BENSON et al. v. BRADY et al.
• Court: Idaho Supreme Court

Page 710

255 P.2d 710

73 Idaho 553

BENSON et al. v. BRADY et al.

No. 7891.

Supreme Court of Idaho.

March 31, 1953.

J. F. Martin, Boise, Kibler & Beebe, Nampa, for appellants.

Elam & Burke, Boise, for Bruck and Constable.

PORTER, Chief Justice.

In September, 1949, defendant, John S. Brady, as owner, was engaged in the construction of an apartment house in Caldwell. He employed one T. W. McCoy as contractor to erect the concrete walls in the basement. Appellant Benson was a foreman for McCoy and supervised and aided in the construction of the forms for such walls and in the stripping of the forms from the walls after the concrete had been poured.

Parallel east and west walls were built standing 24 feet apart. The east wall, being the wall involved in this action, was 75 feet 6 inches long, 7 feet 4 inches high and 6 inches wide. The materials used in preparing the concrete were mixed in such proportion that the wall was of mediocre construction. Its construction was below the standard requirements of the F.H.A. To meet such requirements the wall should have been 8 inches in width. The wall was not attached to its footings, was not reinforced, was not braced and had no pilasters. The concrete in the wall had been poured about one week prior to the hereinafter described accident and was still green.

On the morning of September 28, 1949, appellant Benson was sent to the basement by his employer, McCoy, to construct some forms for footings for a center bearing partition to be thereafter erected. There was no particular place in the basement where Benson was required to work. He set up his sawhorses and commenced to work in the construction of these forms at a point near the east wall.

Respondent Bruck was the contractor engaged by defendant Brady to dig the basement, to level the ground and to backfill the trenches left when the forms were removed from the walls. On the morning in question respondent Constable, as the employee of Bruck, was engaged in backfilling along the walls. He was using a bulldozer weighing about 12,000 lbs. with a 9-foot blade extending 3 feet in front of the bulldozer. He was working in part at least under the direct supervision of defendant Brady. He backfilled the trench along the west wall and then was motioned by Brady around to backfill the trench along the east wall. He was carrying out this operation as instructed by driving the bulldozer at an angle of about 45 degrees to the trench and pushing the powdery dirt along the edge of the trench and allowing it to fall over into the trench.

Defendant Brady went down into the basement and was engaged in conversation with appellant Benson when the east wall caved into the basement and fell upon Benson, causing him serious injury. Constable immediately stopped the bulldozer when the wall started to cave. At the place where the bulldozer was stopped the backfill had been made to between 2 and 3 feet from the top of the wall. At the time the wall caved in, the nearest point of the blade of the bulldozer to the wall was a distance of 59 inches; and the dirt being pushed before the bulldozer was a small load according to the testimony of Constable. Brady testified he instructed that the bulldozer was to be kept 8 or 10 feet from the wall. The bulldozer itself was approximately 8 feet from the wall when the cave-in occurred.

The injury to appellant Benson being the result of an accident arising out of and in the course of his employment, he became entitled to the benefits provided by the Workmen's Compensation Law. Appellant United Pacific Insurance Company became liable for such benefits as the insurer of Benson's employer, T. W. McCoy. Appellants brought this action under the provisions of Section 72-204 I.C., for recovery against defendants, alleging their negligence caused the injuries to Benson. The case was tried by the court sitting with a jury. A nonsuit was granted the defendant Brady on the ground that his liability was covered by the Workmen's Compensation Law. The jury returned a verdict in favor of the defendants, Bruck and Constable, and judgment was entered accordingly. The motion of appellants for a new trial was by the court denied. Appellants have appealed to this court from the judgment and from the order denying the motion for new trial. Appellants have not appealed from the judgment of nonsuit granted in favor of defendant Brady and such matter is not involved in this appeal.

We will not discuss the several specifications of error in detail but will consider the substantial questions raised. Appellants first contend that the evidence conclusively established the negligence of respondents as a matter of law. There is no merit in this contention. The question of negligence of respondents under the evidence was clearly one for the jury. Questions of negligence and contributory negligence are for the jury and are never ones of law where the evidence is such that the minds of reasonable men might differ or different conclusions might be reasonably reached by different minds on such questions. Simmons v. Trowbridge, 69 Idaho 79, 202 P.2d 1085; Ford v. Connell, 69 Idaho 183, 204 P.2d 1019.

Appellants next contend that the evidence establishes as a matter of law that appellant Benson was not guilty of any contributory negligence, and that the trial court erred in instructing the jury on contributory negligence. Respondents affirmatively alleged in their answer contributory negligence on the part of Benson. The evidence shows that Benson knew that the wall was not attached to its footings, was not reinforced, was not braced, was only 6 inches in width and was new and green. He was an experienced foreman. He knew that the backfilling against the walls was going on while he was working in the basement. He was not required to work near the east wall when the backfilling was being done against such wall.

'The voluntary use of an unsafe place to work, when other and safer places are available, constitutes contributory negligence, precluding a recovery for injury, if the danger is obvious or of such a character that an ordinarily prudent person would not incur it under the circumstances.' 56 C.J.S., Master and Servant, § 446e., p. 1266. See also, Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Scott v. George A. Fuller Co., 41 Cal.App.2d 501, 107 P.2d 55; 65 C.J.S., Negligence, § 122, p. 732.

In Syllabus 2 in Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651, we held:

'Where one claiming damages for injuries contributes to injury...