Fried & Reineman Packing Co. v. Hugel

• Decision Date: 28 November 1910
• Docket Number: 52.
• Citation: 183 F. 110
• Parties: FRIED & REINEMAN PACKING CO. v. HUGEL.
• Court: U.S. Court of Appeals — Third Circuit

183 F. 110

FRIED & REINEMAN PACKING CO. v. HUGEL.

No. 52.

United States Court of Appeals, Third Circuit.

November 28, 1910

H. V Blaxter (Lazear & Blaxter, of counsel), for plaintiff in error.

T Mercer Morton and Henry Meyer, for defendant in error.

Before BUFFINGTON and LANNING, Circuit Judges, and CROSS, District judge.

BUFFINGTON Circuit Judge.

In the court below, John Hugel recovered a verdict against the Fried & Reineman Packing Company for damages for personal injuries. On the entry of judgment thereon against it the company brought this writ of error.

The present differs from many cases cited to us wherein recovery by a man working in a trench for damages caused by a fall of earth has been denied. In those cases the danger incident to such work was known to and assumed by the injured man. But the proofs in this case are quite different. They show that Hugel was injured by a fall of earth while he was working at the bottom of a trench some 12 feet deep, which the defendant company was excavating. As the work proceeded, the defendant by its engineer in charge, had caused the trench to be shored or braced in proper form about two feet from the surface. As to the precautions taken below this point the proofs differ. The defendant contended that five or six feet lower it had shored and braced the trench in the same way. The proof on behalf of the plaintiff, however, tended to show that at such place it was not shored at all; that the trench got so deep the earth could not be pitched to the surface, and all the defendant did was to put up an intermediate platform to which the earth could be thrown and from which it could be pitched to the surface by workmen standing on the platform; that to hold the platform the defendant made cuts or holes in the sides of the trench in which crosspieces were placed and platform boards laid thereon; that the weight of the dirt and the men working caused the earth under the cross-supports to weaken and give way. From the proofs before it, the jury could find the defendant was negligent, for they could infer that shoring at the depth the trench had reached was a proper precaution to safeguard the workmen, and that the defendant had not properly performed at that point the duty which it assumed. But, assuming the proofs were such as to warrant a finding of negligence on defendant's part, it is further contended that Hugel assumed the risk and continued working...