Gibson v. Freygang
| Decision Date | 08 May 1905 |
| Citation | 87 S.W. 3 |
| Parties | GIBSON v. FREYGANG et al. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; James Gibson, Judge.
Action by Joseph B. Gibson against Henry Freygang and another. From a judgment for plaintiff, defendants appeal. Reversed.
A. L Berger and Harkless, Crysler & Histed, for appellants.
O. H Avery and Elijah Robinson, for respondent.
Action for damages for personal injuries alleged to have been sustained by plaintiff in consequence of defendants’ negligence. Plaintiff recovered judgment in the sum of $3,590, and defendants appealed.
Defendants contend that, under the facts disclosed by the evidence, the case should not have been submitted to the jury. Evidence was introduced by plaintiff showing the following state of facts: Plaintiff at the time of the injury, February 8, 1903, was a common laborer in the service of defendants, who were contractors engaged in constructing the approaches and abutments for a highway bridge crossing the Missouri river at St. Charles. Earth for filling was being obtained from the top of an embankment situated in the city, on the west side of Second street, near Adams. The elevation of the bank extended some sixty feet above the street level. From the height of about 50 feet to the top the bank had been removed for a distance of 8 or 10 feet, leaving a level shelf or bench, from which to the top, a distance of 10 feet, the bank rose perpendicularly. The method employed was as follows: Workmen, provided with shovels, picks, and crowbars, worked on the top, detaching earth and throwing it down upon the bench. Workmen stationed there in turn shoveled it into the street below, from which place it was carried away by others for use. Plaintiff had not worked on this bank prior to the day of his injury. On the morning of that day he, with two others, was stationed by the foreman to work upon the bench. After shoveling there for several hours, he was suddenly overwhelmed by a large quantity of earth which became detached from the bank near its top and fell upon him. The resultant injuries were so severe that no claim is made of an excessive verdict. There is some dispute even among plaintiff’s witnesses relative to the operations of workmen at the top immediately preceding the accident. Some say the men were at work there, while others contend they had all been withdrawn about 30 minutes before. In the work done that morning no earth had been detached with crowbars, but it was loosened and thrown from the top to the bench with pick and shovel. The negligence complained of is involved in the act of sending plaintiff to work in a place made extrahazardous by peculiar conditions, of the existence of which defendants knew, and of which they failed to inform plaintiff, who had no knowledge of them, and who was not in a situation to become aware of their presence. It appears that the ground had frozen during the preceding night, and in the morning several seams or cracks, running parallel with the line of the bank, were plainly observable. At the top a large slab of earth was separated from the mainland by one of these seams, which extended to a depth of three or four feet. One of the workmen was ordered by the foreman to throw this slab over with his crowbar, but refused to do it, because of his fear of falling over. This workman afterwards saw the accident, and testified that it was this particular slab that fell upon plaintiff. Further, it was shown that plaintiff, from his position, could not see this seam upon the top, did not know it was there, and nothing appeared upon the face of the bank indicating any defect therein. Defendants did not apprise plaintiff of these conditions at the top.
We cannot concur in the view of defendants that the seam is not made to appear as the proximate cause of the accident. Under the facts disclosed, which we accept as the facts of the case for the purpose of this discussion, the conclusion is irresistible that the severance by the seam of the attachment of the slab to the main body, leaving it without support except at its base, is what caused it to fall.
Nor can we sanction the claim that the fall of earth was one of the dangers naturally incidental to the work, and therefore a risk impliedly assumed by plaintiff. The dereliction of defendants consists in their failure to warn plaintiff, when they set him to work there, of the peculiar conditions which increased the natural danger. A servant does not by implication of law agree to assume the risk of injury from dangers known to the master, but unknown to the servant, and undiscoverable by him in the situation in which he is placed unless the master informs him of such perils. The servant must be given an opportunity to...
To continue reading
Request your trial