City of Owensboro v. Gabbert

• Decision Date: 04 November 1909
• Citation: 135 Ky. 346,122 S.W. 178
• Parties: CITY OF OWENSBORO v. GABBERT.
• Court: Kentucky Court of Appeals

122 S.W. 178

135 Ky. 346

CITY OF OWENSBORO v. GABBERT.

Court of Appeals of Kentucky.

November 4, 1909

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by G. M. Gabbert against the City of Owensboro. From a judgment for plaintiff, defendant appeals. Affirmed.

R. W Slack, for appellant.

Le Vega Clements and Ben D. Ringo, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment in favor of appellee in an action brought by him against the appellant to recover damages for injuries sustained while in its employment as a laborer digging a ditch.

It appears from the evidence that appellee, under the direction of a superior servant of the city, was engaged in digging a ditch two feet wide and six feet deep in a sandy soil. The ditch was not braced or supported in any way, although it could have been shored up and made safe at little expense and the sand in the side of the ditch gave way, causing the solid earth on the surface to cave in and fall on appellee. The argument is made in behalf of the city that appellee, who was a man of mature years and ordinary intelligence, knew, or by the exercise of ordinary care could have known, the dangers incident to the employment, which it is said were obvious, and that he assumed the risk of being injured in the manner he was; and it is further insisted that, as this was a work of construction, and the dangerous place was being made by appellee in the course of his labors, the rule putting on the master the duty of furnishing reasonably safe places for the servant to work in does not apply. Complaint is also made of alleged errors committed by the court in giving and refusing instructions.

Excepting appellee and the physicians who testified in his behalf, no witnesses were introduced by either party. During the examination of appellee, he was asked the following questions: "Q. Now, Mr. Gabbert, at the time the walls of the ditch caved in, you knew it was going to cave in? A. Certainly not, or I would not have been in there. Q. Did you know the danger of its caving in? A. No sir; I never worked in such sand and dirt as that before. Q. Upon whose judgment did you rely in that matter? A. Doc Woods. Q. You knew Mr. Woods well? A. Certainly. Q. And you had been working under him? A. Yes, sir. Q. You knew he was an experienced man? A. Yes, sir. Q. How long had you been digging ditches of that kind and depth? A. I don't know as I ever dug any besides that of that kind and depth. Q. How long had you been digging at six feet in that place? A. Something like two days, I guess. It was deeper out there where it caved in than where we commenced. Q. It hadn't caved in anywhere else, had it? A. No, sir; that was the first cave-in in that ditch. Q. Could you see anything more about that soil than the shape of that ditch, or know anything more about it than Mr. Woods could see? Was there anything he could see or know about it that you could not see or know? A. I can't say anything about that. Mr. Woods should have understood his business and knew the disposition of the soil. Q. Did you see that sand crumbling? A. No, sir; I didn't see any sand crumbling. I was cleaning up the bottom of the ditch when it caved in, and I don't remember watching it. Q. You received all of your orders from Mr. Woods, did you? A. Certainly. Q. Did anybody else about the work have authority to give orders to the men except Mr. Woods? A. No, sir. Q. Did you have any warning at all before it caught you? A. No, sir; none at all. Q. What, if anything, had you said to the foreman about the ditch? A. I just remarked to Mr. Woods, who was 10 or 12 feet behind me, awhile before that happened, that I thought it ought to be braced, that there was sand there, and he said, 'Maybe we will get through without it,' and just went on that way."

It thus appears that appellee, although not sure that the place was dangerous, felt some uneasiness about it and made the inquiry above set out to his foreman, Woods, who, in effect, assured him that there was no danger. It cannot be said that the place was so obviously dangerous that no person of common understanding would have continued to work in it, and so the principle announced in Wilson v. Chess-Wymond Co., 117 Ky. 567, 78 S.W. 453, 25 Ky. Law Rep. 1655, Shemwell v. Owensboro & Nashville R. Co., 117 Ky. 556, 78 S.W 448, 25 Ky. Law Rep. 1671, Duncan v. Gernett Bros. Lumber Co., 87 S.W. 762, 27 Ky. Law Rep. 1039, and other like cases, does not apply. The rule in this state is that when the place in which the servant is engaged in working is not such as imposes upon the...