Dell v. J. A. Schaefer Const. Co.
| Decision Date | 07 April 1930 |
| Docket Number | 28448 |
| Citation | 29 S.W.2d 76 |
| Parties | DELL v. J. A. SCHAEFER CONST. CO |
| Court | Missouri Supreme Court |
Appellant's Motion for Rehearing Overruled, June 11 1930.
Charles A. Lich, of St. Louis, for appellant.
Kelley Starke & Hassett and Hensley, Allen & Marsalek, all of St Louis, for respondent.
This is an action for damages for personal injuries suffered by an employee. The jury returned a verdict for $ 15,000 in favor of plaintiff, and defendant appealed from the judgment entered thereon.
The averments of negligence in the petition may be summarized as follows: (1) Defendant failed to exercise ordinary care to furnish and maintain a reasonably safe place for plaintiff to work, in that defendant failed to brace the walls of a trench in which plaintiff was working or to provide support for the earth around the trench, when defendant knew or could have known that the absence of braces and supports would likely permit the earth to cave in and fall into the trench and injure plaintiff; (2) defendant was negligent in ordering, instructing, and requiring plaintiff to work in said trench; (3) defendant was negligent in failing to warn plaintiff of the conditions; (4) defendant was negligent in failing to brace and support the wall of earth when defendant knew or could have known it was customary so to do; (5) defendant negligently failed to inspect the trench and the earth around it.
The sufficiency of the evidence to sustain the verdict and judgment is not questioned in defendant's briefs. Consequently only a brief summary of the facts, necessary to a proper understanding of the issues presented, is demanded. The evidence adduced warrants the finding that, on November 24, 1925, plaintiff was in the employ of defendant as a laborer, engaged within the scope of his employment at the time of his injuries in digging a trench in connection with the erection of a negro high school on the south side of Laclede, between Garrison and Cardinal avenues, in the city of St. Louis. Defendant, we infer, was a subcontractor, and had what may be called the excavation contract. The evidence shows it included the digging or excavation of the cellar, tunnels, trenches, and pier holes. The plot of ground on which the school was to be erected comprised a block of ground bounded by four streets. The cellar had been dug, partially at least. The north wall of the cellar consisted of a practically perpendicular embankment of earth, the top of which was at least eight feet nine inches above the level of the cellar. Flush with this north wall, plaintiff and another were digging a trench four feet in depth and a few feet wide, into which concrete was to be poured. The evidence further shows that the site on which the school building was to be erected was composed of what is known as filled ground, resulting from the grading of Laclede avenue. The terrain was composed of dirt, clay, bricks, cinders, little rocks, tin cans, and debris and rubbish of all kinds. Prior to the accident the weather had been very cold, thus freezing the ground, but on that day it had become warm and was thawing. The evidence also shows that it was customary to brace such walls of ground as the north wall in this instance, but the evidence most favorable to plaintiff tends to show that the north wall was without braces of any kind. While plaintiff was working in the trench, eight to ten cubic yards of north wall caved in and fell upon and injured him. Other facts, pertinent to the issues discussed, will be adverted to in the opinion.
I. The trial court refused an instruction offered by defendant, reading: 'The court instructs the jury that if you find from the evidence in this case that the defendant used any bracing of any kind on the wall which fell upon the plaintiff and that such bracing was in use before and at the time of the fall thereof, then plaintiff is not entitled to recover and your verdict must be for the defendant even though you may further find from the evidence that said wall was not properly braced or that defendant had not exercised ordinary care in bracing the same.'
Defendant complains of the action of the trial court. The effect of this instruction was to direct a verdict for defendant on the finding that any bracing of any kind was used on the wall, even though it was inadequate or not intended for the purpose of preventing the wall from caving in. This instruction would not only have denied to the jury the consideration of other averments of negligence supported by the proof, but it was outside the evidence, in this, that plaintiff's evidence tended to show no braces on the wall, while defendant's evidence tended to show that the wall was properly braced. It was the duty of defendant to exercise ordinary care to furnish and provide plaintiff a reasonably safe place in which to work. This comprehended reasonably safe braces. If the braces were not reasonably safe for the purpose indicated, they were in effect no braces at all. Thus, in effect, the instruction would have tended to deny to the jury the authority to predicate a verdict for plaintiff on defendant's failure to use any braces on the wall. Brooks v. Menaugh (Mo. Sup.) 284 S.W. 803; State ex rel. v. Daues, 314 Mo. 282, 284 S.W. 463.
II. The court refused a withdrawal instruction asked by defendant. It reads: 'You are instructed that you cannot find a verdict herein for the plaintiff on the ground that defendant failed to exercise ordinary care to inspect the trench mentioned in the evidence and the earth around said trench and thereby to discover that said earth was likely to cave into said trench, in time thereafter, by the exercise of ordinary care, to have either furnished or provided bracing or supports for said earth, warned plaintiff, or refrained from ordering or instructing plaintiff to work in and about said trench; and that ground of negligence is withdrawn from your consideration.'
Defendant asserts that the record is without evidence that it failed to make an inspection. In this connection we said, in Gettys v. American Car & Foundry Co., 16 S.W.2d 85, loc. cit 88: ...
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