Carlson v. Sioux Falls Water Co.

• Decision Date: 22 November 1895
• Citation: 65 N.W. 419,8 S.D. 47
• Parties: CARLSON v. SIOUX FALLS WATER CO.
• Court: South Dakota Supreme Court

65 N.W. 419

8 S.D. 47

CARLSON v. SIOUX FALLS WATER CO.

Supreme Court of South Dakota

November 22, 1895

Syllabus by the Court.

1. While the rule is general that the servant takes upon himself the risks necessarily incident to his employment, still, if the employer has knowledge of some latent hazard which the servant does not know, and which, with proper diligence or reasonable observation, he would not know, he ought not to be held to have assumed such concealed hazard.

2. But where the facts or conditions which increase the ordinary hazard are so open and obvious as to be plainly apparent to and understood by the servant, without effort on his part, he is bound to so see and understand; and, if he continue work without objection, he will be held to have assumed such risk.

3. In such case the employer is not required to inform the servant of facts which he is justified in believing the servant already knows and understands.

On rehearing. Former decision (59 N.W. 217) adhered to, and judgment below reversed.

KELLAM J.

This case was decided at a former term, and is reported in 59 N.W 217. We then reversed the judgment, which was in favor of respondent, but, upon his application, allowed a rehearing of the cause, and it is now before us after such reargument. The action was for the recovery of damages resulting from a personal injury to respondent alleged to have been occasioned by the negligence of appellant. The respondent, with a number of others, was employed by appellant as a laborer, in digging a ditch in one of the streets of the city of Sioux Falls, in which to lay the water pipes of appellant. The natural surface of the ground over which the street was laid was uneven and undulating. To bring the street to grade, the high places had been cut through, and the low places filled up the width of the street,--80 feet; so that, through the fills the ditch was dug through made ground. At the point of the accident the ditch was "from four to five" to a little more than six feet deep, the witnesses not agreeing strictly as to its depth. While so digging in this ditch, and at the depth indicated, one wall of the ditch, suddenly giving way, caved in and upon the respondent, causing the injuries complained of. The earth from the ditch was, by direction of the company's foreman, thrown upon the east side, so as to leave the other side clear and unobstructed for the handling of the pipe by the men who followed for that purpose. It was the east bank which gave way,--occasioned possibly, as both sides seem to presume, by the sliding of the new or filled earth from the old; induced, perhaps, if the above theory is correct, by the superadded weight of the earth thrown upon that side of the ditch. These are the general facts upon which respondent recovered in the trial court. Particular portions of the evidence, which seem to have a bearing upon appellant's liability, will be noticed as we proceed.

Respondent concedes that the general rule of law governing liability in such cases was correctly stated in our former opinion, but argues that the established facts in this case put it within a class of well-defined exceptions to the general rule, which recognize and declare the master's liability when he has knowledge, superior to that of the servant, of facts which would naturally increase the hazard of the employment, which he fails to providently guard against, or communicate to the servant, so as to put each upon an equal footing as to knowledge of the risk. That such a case as here outlined should be excepted from the general rule is reasonable and fair to both employer and servant. While it is true that in general the servant takes upon himself the risks necessarily incident to the employment, still, if the employer has knowledge of some latent hazard, which the servant does not know, and which, with proper diligence or reasonable observation, he would not know, he ought not, in justice, to be held to have assumed such concealed hazard, known only to the employer. The facts in respect to which it is claimed that appellant had knowledge superior to that of respondent and which increased the hazard of the employment, were that the ditch was being dug at the place of the accident through filled earth, and the length of time the added or filled earth had been there. While there was no direct evidence that filled earth is more likely to slip or cave than the same earth in its natural bed, it may be safely assumed, as it seems to have been on the trial, that such is a general fact resulting from natural laws, understood by both parties, and of which neither would have superior knowledge. It is undisputed that appellant, through its overseer, Cunningham, had actual knowledge that the excavation at the place of the accident was through earth that had been brought from a neighboring cut, and placed there to bring the street up to grade. Did Carlson, the respondent, know it, or know the material fact that it was filled-in earth, or, if not, are the proved facts and circumstances such as will permit him to take advantage of his actual want of knowledge? In other words, upon the undisputed facts, does the law charge him with such knowledge? What is Carlson's evidence as to his actual knowledge? He was asked, "Did you know anything about there being a fill up there on Minnesota avenue, where you were digging?" His answer was, "I never know [this is the word in the abstract, but was probably intended for "knew"] anything about it." He made the same answer to a similar question on cross-examination, the context being as follows: "Q. Well, now, the last dirt that you threw up that day, before it caved, what kind of dirt was it? Black soil? A. Black soil in the bottom. Just got down to the black soil. Q. Then you were digging right through dirt...