Haas v. Balch, 246.

• Decision Date: 10 July 1893
• Docket Number: 246.
• Citation: 56 F. 984
• Parties: HAAS v. BALCH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 984

HAAS v. BALCH et al.

No. 246.

United States Court of Appeals, Eighth Circuit.

July 10, 1893

Statement by SHIRAS, District Judge:

In the year 1891 the defendants in error, composing the firm of Balch & Wetherbee, were engaged in grading down Fourth street, in the city of Stillwater, Minn., and had in their employ a large number of laborers, of whom the plaintifi was one, under the immediate supervision and direction of a foreman named Clausen. The plaintiff while engaged in shoveling dirt into a dump car, was injured by the falling down of the bank of earth at the foot of which he was working; and for the injuries caused him he sued the defendants in error. Upon the conclusion of the evidence introduced by the plaintiff on the trial below the court upon the motion of the defendants, directed the jury to return a verdict for the defendants, and the question for determination is whether the trial court erred in withdrawing the case from the consideration of the jury.

There was evidence introduced before the jury tending to show that Clausen, the foreman, had the entire control of the work, and the hiring, discharging, and supervision of the men employed therein; that when the accident to plaintiff happened the men were engaged in making a cut some 15 feet or more in depth through a small hill; that part of the men were engaged in undermining and throwing down the bank, and others, including the plaintiff, were shoveling the earth into the dump cars used to remove the same to other parts of the work; that at the place where the accident happened the bank had been undermined, so as to leave the upper portion overhanging that the foreman had endeavored to pry off the overhanging crust by the use of a crowbar, but had not succeeded in throwing the same; that when the dump cars were run in to be loaded, and the plaintiff went to his assigned position, he thought the bank might fall, and he called the attention of the foreman thereto, and asked him if it was safe to work there; that the foreman assured him there was no danger; that the overhanging portion of the bank was interlaced and supported by roots of bushes or trees, which would hold the same in place; that the foreman then went to the top of the bank, and from that position reiterated his assurances of the safety of the bank, and directed the men to proceed with the loading of the cars; that the men engaged in shoveling, including the plaintiff, continued throwing the earth into the cars, and in a short time the overhanging bank fell down, seriously injuring the plaintiff.

N. M. Thygeson and J. M. Gilman, (Munn, Boyesen & Thygeson, on the brief,) for plaintiff in error.

C. A. Severance, (Keith, Evans, Thompson & Fairchild and Davis, Kellogg & Severance, on the brief,) for defendants in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

SHIRAS District Judge, (after stating the facts.)

The undisputed fact that the bank, without any change in the situation affecting its stability, fell down in so short a time after the men had commenced loading the cars, clearly shows that the foreman was in error in assuming that the men could work beneath the same without risk of injury. The risk actually existing could readily have been avoided by using sufficient force to throw down the overhanging portion of the bank, before requiring the men to fill the dump cars at this place. Whether, in view of all the facts then known to the foreman, he acted prudently or negligently in directing the plaintiff and his coworkers to proceed with the work of loading the cars without first throwing down the overhanging bank, was clearly a question to be determined by the jury, which properly could not be withdrawn from their consideration.

The more doubtful question is whether the evidence was such as to require the trial court to withdraw from the jury the consideration and determination of the question whether the plaintiff had such knowledge of the situation, and of the risks and dangers connected therewith, that in continuing to work he must be held to have assumed the risk of the situation, or to have been guilty of contributory negligence.

In support of the ruling of the trial court three positions are assumed:

(1) That the injury to plaintiff resulted from a risk pertaining to the employment, and which was assumed by the plaintiff when he engaged in the service of the defendants.

(2) That, if the risk was an unusual one, the plaintiff continued in the service of defendants after discovering the...