Dimetre v. Red Wing Sewer Pipe Co.
| Decision Date | 09 October 1914 |
| Docket Number | No. 18751[233].,18751[233]. |
| Citation | 148 N.W. 1078,127 Minn. 132 |
| Parties | DIMETRE v. RED WING SEWER PIPE CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Goodhue County; Albert Johnson, Judge.
Action by Nikole Dimetre, as administrator, against the Red Wing Sewer Pipe Company. Verdict for plaintiff, and from denial of alternative motion for judgment notwithstanding verdict or for new trial, defendant appeals. Affirmed.
The rule of the ‘gravel pit’ cases does not apply where the embankment consists of material of such adhesiveness, or so placed or supported, that it may reasonably be expected to withstand the effect and operation of the law of gravitation.
Where the master directs the servant to perform specific work, and assures him that he can do so in safety, if the servant, in reliance upon such assurance, proceeds to perform the work, he is usually not chargeable either with contributory negligence or with a voluntary assumption of the risk, unless the danger be so obvious and imminent and so apparent to the ordinary mind that it would be unreasonable for him to rely upon the assurances given him.
Whether it would be unreasonable for the servant to rely upon the assurances given him is a question for the jury, unless the court can say that reasonable minds could reach only one conclusion. The present case is within the rule requiring the question to be submitted to the jury. A. A. Tenner, of Minneapolis, and F. M. Wilson, of Red Wing, for appellant.
C. P. Diepenbrock and Mohn & Mohn, all of Red Wing, for respondent.
Andrew Naum, an Albanian, 18 years of age, while at work for defendant in its clay pit, was buried beneath a mass of clay and earth which fell from the bank or wall of the pit, and sustained injuries which resulted in his death. Plaintiff as administrator of his estate brought this action for damages and recovered a verdict. Defendant made the usual alternative motion for judgment notwithstanding the verdict or for a new trial and appealed from the order denying the motion.
Defendant contends that the facts bring the case within the rule established in the so-called ‘gravel pit’ cases, and that plaintiff cannot recover for the reason that Naum was chargeable with contributory negligence and had assumed the risks. Plaintiff contends that the instant case does not come within the rule applied in the ‘gravel pit’ cases for the reason that the bank in question was composed mainly of hard, adhesive, and tenacious clay, not likely to give way or fall, and for the further reason that defendant's foreman with full knowledge of the attending conditions had assured Naum that it was safe to work at the foot of the bank and ordered him to do so.
The witnesses do not agree as to the height of the bank or wall of the pit at the place of the accident. Plaintiff's witnesses estimate it as about 15 feet; defendant's witnesses as at least 20 feet. From the bottom to a height of about 7 feet, it consisted of ‘pipe clay’ and was nearly perpendicular. Above this clay was a 4 or 5 inch layer of what is designated as ‘iron rock.’ Above the ‘iron rock’ was a layer of sand, or sandy material, which sloped back considerably and was estimated by plaintiff's witnesses as between 2 and 4 feet in thickness. Above the sandy layer was about 6 feet of ‘brick clay’ and common soil, the face of which was nearly perpendicular and projected 2 or 3 feet beyond the upper surface of the sandy layer. While the testimony discloses some common soil in this topmost layer, the quantity was evidently small as the witnesses on both sides continually refer to this layer as ‘brick clay.’ During the noon hour on the day of the accident, the crew of which Naum was a member passed over the top and near the edge of the bank on their way to and from dinner, and observed a crack along the top 4 or 5 feet back from the edge and several feet in length. They made no examination of this crack, and whether Naum saw it does not appear except by inference from the fact that he passed by with the other members of the crew. They discussed the danger among themselves and then informed the foreman of the crack and that it was dangerous to work under that bank. The foreman went to the top of the bank and after making an examination told the crew that there was no danger and to proceed with their work. They did so. Late in the afternoon the overhanging bank fell and Naum was caught beneath it and killed. The falling mass came wholly from the upper portion of the bank. The layers of ‘iron rock’ and of ‘pipe clay’ remained in place showing that the slide was not caused by the work in which the crew were engaged during the afternoon. Some sand had dropped or trickled down during the afternoon, but apparently not in sufficient quantities to attract attention. The hard and adhesive character of the so-called ‘brick clay’ is indicated by the fact that after it had fallen to the bottom of the pit it still remained in large, hard chunks-some of them so large that it required two or three men to lift them from the unfortunate Naum.
[1] The embankments considered in the gravel pit cases were composed of material likely to slide or fall in the absence of lateral support, and it was held that the workman is presumed to have ‘the knowledge which common observation forces on the most ordinary intellect,’ and to have known the effect and operation of the law of gravitation, and that by working upon or at the foot of such an embankment he took the chance of being injured in case it should fall. Olson v. McMullen, 34 Minn. 94, 24 N. W. 318;Pederson v. Rushford, 41 Minn. 289, 42 N. W. 1063;Swanson v. Great Northern Ry. Co., 68 Minn. 184, 70 N. W. 978;Reiter v. Winona & St. Peter Ry. Co., 72 Minn. 225, 75 N. W. 219;Kletschka v. Minneapolis & St. Louis Ry. Co., 80 Minn. 238, 83 N. W. 133;O'Neil v. Great Northern Ry. Co., 101 Minn. 467, 112 N. W. 625. But where the embankment consists of material of such adhesiveness, or so placed or supported, that it may reasonably be expected to withstand the effect and operation of the law of gravitation, the rule does not apply. Hill v. Winston, 73 Minn. 80, 75 N. W. 1030; Lund v. E. S. Woodwarth & Co., 75 Minn. 501, 78 N. W. 81;Kohout v....
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