Gracy v. Walsh

• Decision Date: 18 February 1918
• Docket Number: No. 12715.,12715.
• Citation: 201 S.W. 582
• Parties: GRACY v. WALSH.
• Court: Missouri Court of Appeals

201 S.W. 582

GRACY v. WALSH.

No. 12715.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by William Gracy against Michael Walsh. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cyrus Crane and Hugh E. Martin, both of Kansas City, for appellant. Atwood, Wickersham, Hill & Popham, of Kansas City, for respondent.

TRIMBLE, J.

Defendant, a contractor, was constructing a sewer ditch on one of the streets in Kansas City. Plaintiff was one of his employés, and while at work in the ditch the side thereof caved in upon and injured him. He brought this suit for damages, alleging that the ditch caved in because the sides were not cribbed, shored up, planked, or guarded in any way, and by reason of this fact the defendant negligently failed and omitted to furnish plaintiff with a reasonably safe place in which to work. The answer, in addition to a plea of contributory negligence, set up that plaintiff was familiar with the way the work was being done and knew the surrounding conditions and the dangers of the work fully and as well as did defendant and his foreman, and that with such knowledge plaintiff voluntarily continued at the work and assumed whatever risk there was connected therewith. Plaintiff recovered a judgment for $750, and defendant appealed.

The ditch was two feet wide and, according to plaintiff's evidence, about six or seven feet deep, and down to a rock bottom at the place where the accident occurred. It rained the larger part of the night before, and dirt had not only washed in but had fallen from both sides on account of the rain. It was necessary to go deeper than the rock bottom they had reached, but this would have to be done by blasting. And before anything of that kind could be done, the dirt that had fallen and washed in had to be cleaned out. According to plaintiff's evidence there was not a great deal of dirt to be cleaned out at the place where the foreman put him to work. At one time, he said there was "just a little in the bottom; not half a foot had slid in there." But in another place he said that, as near as he could come to it, the dirt was a foot deep. The foreman put plaintiff to work cleaning this out, and, while thus engaged in throwing out the loose dirt, one side of the trench caved in and injured him.

According to the evidence in behalf of plaintiff, the defendant had a man whose special duty it was to put in braces and shore up the sides of the trench, and the necessity of bracing was passed upon by the foreman who directed this man when and where to put in braces. Plaintiff was not required to do any work of that kind. Plaintiff was experienced in the work of digging ditches, and it is somewhat difficult to reconcile some of his statements. In one breath he says he could tell by looking at the ground pretty well when it would slide if he had noticed, but he did not pay any attention to it; that he thought it was the foreman's duty to tell him; that he knew the ditch had been caving in the night before and he went in and paid no attention to the dirt at the side of him; that he did not look at it at all. In the very next breath he says he looked at it when he first went in; that he did not see a slide there; that it looked all right to him; that when he first jumped into the ditch he looked at it but it did not look to him like it would give way at that time; that he did not see anything that looked like it was going to give way; that he did not see anything that made him think there was danger there at all; and that he went ahead and worked. There was evidence in plaintiff's behalf that in ground known as "joint clay" there was a liability of the dirt suddenly caving in; the first manifestation of which would be cracks upon top of the ground, which the foreman present and in charge of the work, would be the one to see, since plaintiff was only 5 ½ feet tall and his head was below the level of the ground. The only interpretation we can place upon the apparently contradictory statements of plaintiff, by which they can be reconciled, is that he looked at the ground when he first went in and saw no likelihood of its caving and went to work cleaning out the ditch at the command of the foreman and paid no attention to the dirt while he worked, depending upon the foreman's judgment and watchfulness to see that no manifestations of caving disclosed themselves on top of the ground. He says he could not watch the earth for a few feet back of where he was working nor on top of the ditch; that this was the foreman's business and he relied upon the foreman's judgment. There was also testimony that "joint clay" cracks away behind the men and the cracks run along parallel with the ditch and the man on top is supposed to notice that. The testimony in plaintiff's favor tended to show that the ground in question was "joint clay," and that in that character of ground it was customary to brace the sides of the ditches, else it was liable to cave off in large chunks.

Defendant's evidence tended to show that it was not joint clay they were working in, but an ordinary kind of clay, and that in that character of dirt it was not customary to brace the sides except when they went to blast, and that the only braces they put in on this ditch were just before they were ready to blast; that the sides in question would have...