City of Ft. Wayne v. Patterson

• Decision Date: 27 November 1900
• Citation: 58 N.E. 747,25 Ind.App. 547
• Parties: CITY OF FT. WAYNE v. PATTERSON.
• Court: Indiana Appellate Court

25 Ind.App. 547

58 N.E. 747

CITY OF FT. WAYNE

v.PATTERSON.

Appellate Court of Indiana.

Nov. 27, 1900.

Appeal from superior court, Allen county; Frank S. Roby, Special Judge.

Action by James W. Patterson, administrator of the estate of Patrick Sheehy, deceased, against the city of Ft. Wayne. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

Barrett & Morris and W. H. Shambaugh, for appellant. Marshall, McNagny & Clugston, and George F. Felts, for appellee.

BLACK, J.

The appellee, as administrator of the estate of Patrick Sheehy, deceased, brought this action against the appellant to recover for the death of his intestate. Three paragraphs of complaint were held sufficient on demurrer. In the first paragraph it was, in substance, alleged (omitting introductory matter): That on and before the 24th day of May, 1897, the appellant owned and operated a system of waterworks in the city of Ft. Wayne, used to supply the citizens with water in consideration of compensation paid by them by way of a specific tax known as “water rent.” That, in order to extend said system, the appellant, on the day above mentioned, was engaged in extending a water main along one of the streets of said city, and in excavating a trench in said street wherein to lay a pipe in which to conduct water for delivery to additional consumers, and had a large force of men employed in the prosecution of such work as common laborers, one of whom was appellee's intestate. That he, so employed, assisting in said work, was ordered and directed, with others, by the appellant, through its proper officer, the inspector of waterworks, who was the superintendent of said work, having, under authority conferred by the appellant, full charge and control thereof and of the workmen employed thereat, to proceed from a place where he was, where the ground was compact and hard, and where the bank was firm, to another point in said trench, and to dig certain holes in the bottom thereof, called and known as “bell holes.” That said latter point was one where said trench had been caused by the appellant to be excavated, in common with the rest of said trench, to a depth of six feet and six inches, and to a width of two feet; and the appellant, by its said inspector and superintendent, had caused the earth taken therefrom to be carelessly and negligently thrown out and deposited and piled up to the height of about five feet upon one of the banks of the trench, near the edge thereof, without said bank being shored or braced, or in any way made secure against falling in, and where the upper stratum of the material of said street, of a thickness of about two feet, was composed of a body of closely compressed and compact soil mixed largely with gravel. That at said point, unlike the part of the ditch where the intestate had been at work previously, the middle and lower portions of the banks were composed of earth of a loose and unadhesive character, of such a nature as to render the piling thereon of the earth taken from the trench liable to cause the bank whereon it was so piled to cave in, and endanger the lives of persons in the ditch opposite thereto. That, as appellant well knew, all the material of the banks of the ditch at this point was filling, or made earth, placed there but a short time before for the purpose of raising the roadway above high water; that of all this the intestate had no knowledge or notice; that he, in obedience to said order, did go along in said trench to the point where said bell holes were so ordered to be dug, the digging of which required great care and attention in order to comply with measurements accurately made, and said work had to be performed in the bottom of said trench, where no knowledge could be gained of the danger resulting from the negligence of the appellant in so loading said bank with earth under the conditions that then and there existed; and so, without knowing and appreciating the conditions thereat, and the danger likely to result therefrom, the intestate entered that portion of the trench, and, relying on the care of the appellant, under whose direction said portion as well as all other portions of the trench had been constructed, and without knowing the danger, he at once proceeded to do the work so assigned him; that, while he was so engaged, and but a few moments after he had entered that portion of the trench, without any fault on his part, and because of the negligence and carelessness of the appellant acting through its said officer in so carelessly and negligently piling the material taken from the trench on the bank thereof without said banks being shored, braced, or otherwise secured against falling in, “the bank on which said pile of earth was so placed, in consequence of the great weight of the material so piled upon it, and the loose and incohesive character of the material or filling in the middle and lower portions of the sides of said bank, caused the same to give way and cave in, together with the mass of earth piled on said bank, and the heavy crust of combined gravel and other material composing that part of said ground near the surface, and, without any fault or negligence on his part, to fall upon and against” the intestate with such great force as to wound, bruise, and crush him in such a manner as to cause his death within a few hours thereafter; wherefore, etc.

The second paragraph of complaint was in most respects like the first, with somewhat greater particularity. It was alleged that the trench for the water main was being excavated along St. Joe Boulevard, commencing at its intersection with Lake avenue, and extending northward for about 600 feet,-the trench, constructed along the east side of the street, being divided into sections, each 12 feet long, one of which sections was assigned to each of the laborers; that at a point about 250 feet from the south end of the trench it approached near the center of the street, there being at this place a curve in the trench to accommodate it to the course of the street, which was not straight, and not of uniform width; that the southern portion of the trench for 250 feet was straight; that the intestate, as a common laborer assisting in the prosecution of the work, had been employed by the appellant in digging and excavating one of the southern sections, where the earth was solid, compact, and cohesive, and exceedingly hard; that this place was safe and secure, and there was no danger of the caving of the banks, or necessity for bracing or shoring the banks to prevent caving in; that said trench was being dug, in commonwith the rest of the trench, to the depth of 6 feet and 6 inches and to the width of 2 feet; that the appellant, through its said inspector and superintendent, had ordered and directed its said laborers to pile up all the earth from the trench on its west bank, and near the edge thereof; that said pile extended throughout the entire length of the trench, and in some places it was about 5 feet high, and as close to the edge of the trench as it could be placed; that the intestate was about 5 feet and 6 inches in height, and was an inexperienced man at the work at which he was engaged; that, after he had completed the excavation of the section so assigned to him, he was ordered by the appellant to proceed along the bottom of the trench in a northerly direction from the place where he had thus been at work, to another point therein, and there to perform certain specific service other than the excavating which he had been engaged in doing, namely, to dig certain holes in the bottom of the trench, called and known as “bell holes”; that the point to which he was thus directed to go, and to which he did go, was 250 feet from the southern end of the trench, and was a place where the appellant had caused the trench to be excavated, in common with the rest of the trench, to the depth of 6 feet and 6 inches and to a width of 2 feet, and there was at this point a curve in the trench, the convex side of which was in the west bank; and the appellant had caused the earth taken from the trench at this point to be negligently and carelessly thrown out and deposited and piled up to the height of about 5 feet upon the west bank, and as near the edge of trench as it could be placed,-all of which was done without said bank's being shored or braced, or in any way made secure against falling in. There were averments like those in the first paragraph relating to the character of the materials of the banks at this point, and the knowledge of the appellant and the want of knowledge of the...