City of Greeley v. Foster

Decision Date07 March 1904
PartiesCITY OF GREELEY v. FOSTER.
CourtColorado Supreme Court

Appeal from District Court, Weld County; Christian A. Bennett Judge.

Action by Herbert M. Foster against the city of Greeley. From a judgment for plaintiff, defendant appeals. Reversed.

Charles D. Todd and H. E. Churchill, for appellant.

E. A Thompson, W. H. Thompson, A. C. Patton, and Ralph E. Esteb for appellee.

CAMPBELL J.

Action to recover damages for personal injuries due to the negligence of the defendant. Judgment for plaintiff. Defendant appeals.

A tile drain which had been laid in one of the streets of the defendant city proving inadequate for the purpose for which it was constructed, the city determined to take it up and put in a larger one. This made it necessary to dig in the street above the old drain a ditch three feet wide and six feet deep. The work was done in the late winter and early spring by the city itself, under the immediate supervision of H. P Heath, one of the members of the city council. The ground was thoroughly saturated with water, and a steam engine was used to pump this water out of the ditch and the manholes as the work was carried on. The old tile were also filled with water, which was poured into the trench as they were taken up, and the water, warmed somewhat by the escaping steam, was constantly flowing through the ditch, which caused the edges of the ditch at the bottom to be loosened, and thus withdrew support from the overhanging soil. In digging the trench to prevent caving of its sides, which, for the reasons mentioned, occurred at different points of the work, from the beginning to the end, the sides were shored or sheeted. This sheeting consisted of boards or pilings placed upright against both sides of the trench and driven into the soil at the bottom, along which horizontally 16-feet stringers were laid, which in turn were held in place by cross-braces. The city at all times furnished in close proximity to the ditch suitable and abundant material for properly curbing it. The plaintiff, as the complaint alleges, was employed as a day laborer in all the work of excavating the trench and relaying the drain tile, and for such other work in that connection as was ordinarily required. At the trial plaintiff testified that he was employed to do whatever work was necessary to be done in and about the digging of the trench, the removing of the tile, leveling the bottom thereof for the reception of the new tile, sheeting or curbing the trench, relaying the new tile, and filling in the trench when the same was laid. The plaintiff had been doing this kind of work for a period of about 30 days, and, although he had never been engaged in similar work before, was entirely familiar with the nature of the soil in which the trench was dug, was aware that in digging the same its banks or sides had fallen in or exhibited that tendency, and that material had been furnished by the city for safeguarding it; knew what the sheeting was put in for, had assisted in putting it in, and, as different sections were completed, in taking it out. In short, he had in all respects as much knowledge of the nature and character of the work and the dangers incident thereto as the foreman himself. The work was done in sections, and as fast as one section was completed and new tile laid the ditch was filled in with earth, and a new section begun. When the accident which resulted in plaintiff's injury occurred, the trench had been completed and filled in with the exception of about 30 feet at one end, and the only work left to be done was the laying of tile, or connecting that already laid with a manhole. About half an hour before the injury was received plaintiff was working at a manhole at the extreme end of the ditch, and was then called from this place by the foreman to go to the unfinished section of the trench to do whatever was necessary in completing it. For nearly 30 minutes he was engaged in wheeling dirt from or near the manhole about 30 feet distant and dumping it into the unfinished trench, and in doing so necessarily saw its condition. By the order of the foreman, given some time in the morning of this day, the stringers, cross-braces, and the uprights on the south side had been removed, so that the workmen could dump the dirt into the trench, instead of shoveling it over the piling that extended several feet above the natural surface. The north side gave evidence of caving, which was called to the attention of the foreman, and he determined to replace the curbing in order to make the place safe for the workmen to finish the work of laying or connecting the tile. About five minutes before the injury occurred, when some one on top called out that caving had begun, plaintiff and others stopped the work they were then doing, and the foreman directed plaintiff to go down into the trench and assist a fellow laborer named Thomas, who was already therein, in replacing the cross-braces. braces. In obedience to the order, plaintiff got downer into the trench, and was holding one end on a stringer, the other end of which was held by Thomas, and while they were attempting to put in the cross-braces the earth from the north bank caved in and fell against plaintiff, pinning him against the south wall, and thus caused the injuries complained of. No evidence was introduced by the defendant, and the case was submitted to the jury upon that of the plaintiff and his witnesses. In his examination in chief plaintiff was of the impression that he was ordered into the trench for the purpose of removing a plank so as to make level the bottom of the trench on which the plank was to be laid for the reception of the tile, but by his cross-examination and the testimony of his own witnesses it is clearly established that he was ordered by the foreman to go into the trench, and knew that he was sent into it for the express purpose of making it a safe place. If this were not so, plaintiff learned that such was the work he was to do at once after getting into the ditch, and in ample time to get out of it to escape the danger which he necessarily saw was threatened. Plaintiff in his testimony, as in his complaint, was that when he got down into the ditch he as ignorant of the dangerous character of he place, and did not know that the cross-braces had been removed; but it is quite clear from all the evidence that he not only had full opportunity for knowing the situation, but, as a matter of fact, knew as well as any one connected with the work that there was danger of the bank caving in and injuring those who were working in the trench at the time of the accident, and that the cross-braces had been taken out, and, if he did not actually assist in removing them, was present when others did so, and saw them in the very act. But if he did not know these things it was his own fault. It was because he did not use his eyes. He cannot close his eyes to danger, and be heard to say that he was not aware of it. All the witnesses testified that any one, whether experienced or inexperienced, if he had used his eyes, would have been able to see that the place was a dangerous one. Plaintiff was an adult, presumed to know the law of gravitation, and that the tendency of the sides of this trench, in its then condition, left unsupported, was to fall; and, if he was ignorant of such a law, the fact was well known to him that the sides of this very trench did fall on several occasions during the work of excavation, and he was ordered to assist in shoring the trench at this place to prevent the happening of the very thing which afterwards did happen and cause his injuries, and which he, and all those present, knew was imminent from the indications visible to all of them. He was not called upon suddenly by the foreman to go into a place of danger, of which he was, and the foreman was not, ignorant, but he was actually engaged in a work for which he was employed, and which, in the very nature of things, was, to his own knowledge, obviously dangerous, and which he was doing in order to make safe a place for himself and others to work in. It is alleged in one part of the complaint that this particular work of bracing or curbing the trench at which plaintiff was engaged at the time he received his injuries, and which was extrahazardous, to defendant's, knowledge, of which he was not aware, was not that for which he was employed, but he admitted at the trial that every kind of work that was necessary to be done in order to put in a new drain was within the terms of his employment. The defenses were that defendant was not guilty of negligence, that plaintiff's own negligence contributed to the injury, and that the risk of danger from the very work in which he was engaged was voluntarily assumed by him under the terms of his employment. Under the issues thus joined, and upon a state of facts substantially as we have above outlined, the case was submitted to the jury, which found a verdict for the plaintiff. The defendant has assigned many errors, most of which, in the view we take of the case, are not of importance upon this review.

1. The defendant insists that the complaint does not state a cause of action. This case was once before our Court of Appeals and by that tribunal it was held that the complaint did state a cause of action, although, so far as its allegations disclose, H. P. Heath, who was said to be superior in authority to plaintiff, was a mere fellow servant. But this circumstance was not considered by the Court of Appeals, nor is it by us, as important in the light of the other allegations. Foster v. City of Greeley, 15 Colo.App. 176, 61 P. 482. We are of opinion that the complaint on its face states a cause of action, and the specific...

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