Carlson v. Sioux Falls Water Co.

• Decision Date: 28 May 1894
• Citation: 59 N.W. 217,5 S.D. 402
• Parties: CARLSON v. SIOUX FALLS WATER CO.
• Court: South Dakota Supreme Court

59 N.W. 217

5 S.D. 402

CARLSON v. SIOUX FALLS WATER CO.

Supreme Court of South Dakota

May 28, 1894

Syllabus by the Court.

The master is not liable for an injury sustained by his servant in the course of his employment, when the danger is of such a character that it must be as apparent to the servant as to the master, or when it is such that it could not be ascertained by either in the exercise of reasonable care and prudence.

Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.

Action by Peter Carlson against Sioux Falls Water Company. Judgment for plaintiff, and defendant appeals. Reversed.

D. R Bailey and Davis, Lyon & Gates, for appellant. Palmer & Rogde, for respondent.

FULLER J.

Plaintiff was a laborer in the employ of defendant, and was, with about 25 colaborers, engaged, at the time he received the injury for which he brings this suit to recover $5,000 damages, in digging a trench 6 feet in depth, in which to place water pipes or mains for the extension of the defendant's system of waterworks in the city of Sioux Falls. At the time of the accident, plaintiff had been thus engaged for 13 or 14 days, and had been in the employ of the defendant upon a former occasion, and about 1 year prior to this time. There were, at the time of the accident, about 15 other men engaged in placing the pipe and in replacing the earth which had been excavated, and all were under the immediate supervision of defendant's foreman, W. M. Cunningham, by whom plaintiff was employed, and by whom the work was being personally conducted. The street in which the men were digging had been graded and filled in some thing over a year before the accident, the greatest depth of the fill being about 5 or 6 feet, and at the place where the plaintiff was at work, and where he was injured. The street was 80 feet wide, and was graded and filled in with yellow clay, the banks sloping to the property line on each side. Mr. Cunningham assigned to each man a place 10 feet in length, which was to be excavated to a depth of 6 feet, and each man was directed to throw all dirt on the east side, and thus the west side of the ditch was left clear, so that the men would have a smooth surface on which to work in placing the lengths of pipe in the ditch where they were connected and covered by replacing the earth which had been thrown out of the trench. The plaintiff had gone down with that portion of the ditch which he was digging to a depth of nearly 6 feet, and had reached and was throwing out the black earth, which was the original surface before the street had been filled in with the yellow clay taken from a cut in the vicinity of the place where the plaintiff was at work, when the east wall of the ditch, together with the dirt which had been thrown upon the bank, caved in upon the plaintiff, and caused the injury of which he complains, and for which the jury gave him a verdict for $5,000. The grade was comparatively uniform, and it appears that there were no obstructions to prevent any one from seeing the fill as far as it extended. It would seem that a person standing on the center of any portion of the fill could look down on either side, and observe the depth of the fill about as readily as he could observe the water from a bridge placed 5 or 6 feet above, and extending across, a flowing stream. There was no sand or gravel mixed with the yellow clay of which this fill was composed, and the bank of the cut from which the street was filled, though about 15 feet in height, remained intact, and stood perpendicular at the time of the trial. Letters and characters cut in these banks some time prior were noticeable, and remained in their original condition. There is no direct evidence that clay of this kind, which has been placed in a fill for more than a year, and subjected to the elements and the weight of objects almost constantly passing over it, would be more likely to cave and fall into a ditch which was being dug through it than ordinary earth which had remained undisturbed for many years without being thus subjected, and a court would not take judicial notice that the hazard or liability to be injured was greater than is usually incident to the employment in which the plaintiff was engaged. Other men, having like opportunity to observe and who were plaintiff's colaborers, and witnesses in his behalf, knew that the trench was being dug through a fill, and we are unable to understand how Cunningham could have known, under the circumstances, anything about the probability of danger that was not within the knowledge of the plaintiff, as indications that banks of this kind were about to give way and cave in would ordinarily appear to one in the trench before they would be noticeable to a person standing upon the surface and at the side of such trench.

Upon the trial the plaintiff testified as follows: "Q. Well now, the last dirt you threw up that day before it caved, what kind of dirt was it? A. Black soil in the bottom. Just got down to the black soil. Q. Then you were digging right through dirt which had been put there? There was a fill, wasn't there? A. I suppose it was a fill. Q. Don't you know it was? A. I never knew anything about it." That the clay composing the fill slipped upon the black earth near the bottom of the trench, and thereby crumbled and caved in upon the plaintiff, seems to be the accepted theory as disclosed by the record; but there was nothing to...