Guild v. Pringle

• Decision Date: 25 May 1904
• Docket Number: 497.
• Citation: 130 F. 419
• Parties: GUILD et al. v. PRINGLE.
• Court: U.S. Court of Appeals — Fourth Circuit

130 F. 419

GUILD et al. v. PRINGLE.

No. 497.

United States Court of Appeals, Fourth Circuit.

May 25, 1904

P. H Nelson and R. W. Shand, for plaintiffs in error.

D. W Robinson (Wm. H. Lyles, on the brief), for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and McDOWELL, District Judges.

McDOWELL District Judge.

This was an action for damages instituted in the State court by the administratrix of R. S. Pringle against Guild & Co., and removed by the defendants below (plaintiffs in error here) to the federal court.

The city of Columbia, S.C., early in 1902, entered into a contract with Guild & Co. to lay a considerable quantity of sewer pipe. On August 4, 1902, about half past 8 o'clock at night, one R. S. Pringle fell into an excavation which had been made by Guild & Co. and was so injured that he died on the 15th of the same month. At the time of the injury, Pringle was returning from a meeting held at a church on the north side of Indigo street to his home, which was west of the church, and on the south side of Indigo street. In Indigo street, from a point nearly opposite the church to a point west of Pringle's house, a trench had been dug by Guild & Co., 14 feet deep and 3 feet wide, at the side of which was an embankment from 7 to 9 feet high, made by piling the earth excavated from the trench. The only crossing place left in the length of this trench was a railroad crossing on Indigo street. At this point the contractors, for the purpose of tunneling under the two railroad tracks, dug a hole between the two tracks. This hole, into which Pringle fell, was about 4 feet wide, 5 feet long, and about 14 feet deep. The earth removed therefrom had been entirely, or almost so, thrown outside of the tracks. In crossing at this point, Pringle was taking a convenient route home, and one at that juncture, because of the long trench, must used by the public. This hole appears to have been open from the 1st of August until after the accident in question. In was never covered over with planks at night, nor was any precaution taken to prevent such accidents, unless it was that a red light was left at the side of the hole, and as to this there is a conflict of testimony. Fencing this hole seems to have been impracticable, as the distance between the two railroad tracks was insufficient to leave requisite 'car clearance.' There was an electric arc light about 85 feet from this hole, which appears to have been in operation at the time of the accident. But apparently this light was at times insufficient to enable travelers to observe or correctly locate the hole. There is, as above stated, a conflict of testimony as to the presence of a lantern at the hole on the night of the accident and on the preceding nights. The witnesses for the defendants below, testifying that the lantern was there, much outnumber those for the plaintiff below, testifying to the contrary. At the time in question there was in force an ordinance of the city of Columbia, reading, so far as is now of interest: 'Excavations in any street or alley shall be securely covered at all times when persons are not at work therein. * * * ' In the contract made between Guild & Co. and the sewer commissioners for the city are the following clauses:

'The conductor shall observe and obey all city ordinances in relation to obstructing streets, keeping open passage ways, and protecting the same where exposed.

'Suitable barriers shall be placed around all excavations, and sufficient danger signals maintained at night to prevent accidents to street passengers.

'All the responsibility for the entire line of sewers and accidents occurring therewith shall rest with the contractor building the works until the completion and acceptance.'

The jury returned a verdict of $5,000 against the plaintiffs in error, and judgment in accordance therewith was entered.

The first assignment of error is to the action of the trial court in admitting the testimony of W. R. Henderson, who repeated a declaration made by Pringle, and to the subsequent admission by the court of similar testimony by other witnesses. This testimony, as preserved in the bill of exceptions, is as follows:

'On the trial of this cause, the plaintiff called as a witness on her part one W. R. Henderson, who testified as follows: Q. How soon after the accident did you see him (plaintiff's intestate) on the night of August the 4th? A. It was ten minutes before I got there. The reason of my delay was caused by the fact that when I heard it I went back to secure ladders. * * * Q. When you went to the hole on the night of August 4th, what did you find? Well, I found that Mr. Pringle was down at the bottom of the hole, and some people gathered about there. Q. What did you do? A. Well, by that time they had brought the ropes and ladders, and we tried to get him out. Q. Can you tell us who was there that you knew? A. By the time I got there, Mrs. Pringle, my sister, Morgan Hooper, and Oscar Alexander, two men employed by the mills stables, and a man employed to oversee, and the foreman of the street gang was in the hole at the time. All these and Preston Tredwell was present. Q. Was Mr. Alston Pringle there? A. Yes, sir; and watchman of the A.C.L. Q. Did you go down in the hole? A. I did not. Q. What was Mr. Pringle's condition, as far as you could ascertain, at that time? A. I could see in the hole; there being a lantern. I could see he was in the corner, in a crouching position, with his leg doubled under him, struggling to sit up, and groaning, and laying as he fell. Q. Did he have any conversation with you? A. Yes, sir. Q. Was it intelligent? A. Perfectly so, sir. Q. Did he state anything in regard to the accident, and how he came there at that time? A. Yes, sir. (Defendants' counsel objects to any statement made by Mr. Pringle being given. * * * Counsel for the plaintiff and defendants argued the admissibility of the statement made by Mr. Pringle being given.) The Court: I will admit the question as part of the res gestae. (Defendants' counsel excepts to the ruling.) Q. Where was it? A. Right on the edge of the hole. Q. Was he suffering much at that time? A. Undoubtedly. He was groaning. Mrs. Pringle asked him the question, 'How did you come to fall in here?' He said, 'No lamp put there.' He said he was coming back from the meeting, and there was no lamp at the hole at all. I think that was about the drift of the conversation. (To which ruling of the court, in overruling said objection and permitting said witness to give said testimony, the defendants duly excepted.)

'And after said ruling was made, plaintiff introduced as a witness Alston Pringle, who testified as follows without objection: A. When he (plaintiff's intestate) asked me to get him out as soon as possible, I turned around to go to the fire department to get Mr. Henderson to bring his hands, ladder, and a rope to get him out, and I met him about one-half way between his house and my brother's, and I told him what had happened, and asked him to telephone for a doctor, and then I returned to the hole; and, in a few minutes, parties came with the ladder, and it was put down, and I went down, and I was the first one to go down in the hole. I said, 'Bob, how in the world did this happen?' He said, 'I was coming from the meeting, and I stepped with my left foot and dropped in.' I said, 'Are you hurt?' And he said, 'My hip is broken, or I am paralyzed.' The men commenced coming down. They spread a blanket, and I went up. Q. Did he make any statement about the light? A. I asked the question, 'Was there any light?' and he said, 'No light.' This watchman-- this man--said, 'There was a light.' I said, 'No use to have a discussion here. We will adjust it later.'

'Plaintiff also introduces as a witness Mrs. R. S. Pringle, who testified, without objection, as follows: Q. Did you make any remark to your husband while he was in the hole? A. I did. Q. What did he say? A. He said he was suffering great agony, and I asked him how it happened, and was there no light? And he said, 'No light,' and the foreman said, 'There was a light,' and he said, 'There was not a light,' and the foreman said, 'There was a light,' and he said, 'There was not a light,' and that was all that was said. Q. Where was the foreman standing when he made the remark? A

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