Kenward v. Hultz
| Decision Date | 28 June 1963 |
| Docket Number | No. 23718,23718 |
| Citation | 371 S.W.2d 344 |
| Parties | Donald H. KENWARD, Plaintiff-Appellant, v. Jewell HULTZ, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
George W. Meyer, Roger W. Penner, Meyer, Smith, Shute & Penner, Kansas City, for appellant.
Fred J. Freel, Norman O. Sanders, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for respondent.
Plaintiff sues to recover damages for personal injuries suffered on defendant's premises when a dirt trench in which he was digging caved in, and a large quantity of dirt partially buried him. The case was tried to a jury which returned a verdict for plaintiff in the sum of $3000.00, upon which judgment was duly entered. On motion by defendant, the trial court set aside the verdict and judgment in favor of plaintiff and entered judgment in favor of defendant. Plaintiff appeals All of the evidence in the case was adduced by plaintiff, who testified in his own behalf, introduced a deposition of the defendant and also called and examined defendant as a witness. At the conclusion of plaintiff's evidence, defendant filed a motion for a directed verdict which the trial court denied. Defendant declined to go forward with any evidence and rested upon his motion. The facts which follow were developed by plaintiff's evidence.
Plaintiff and defendant are brothers-in-law, the former having married the latter's sister. They are 'good friends' who visit each other and 'more or less helped each other back and forth', without receiving any pay for so doing. Plaintiff is a 'combustion engineer' employed by the Sheffield Steel Company. He is a graduate of Kansas University with a Bachelor of Science degree in mechanical engineering. Defendant has been employed primarily as a truck driver and a salesman.
As noted above, plaintiff was injured while working in a trench, on defendant's residence property, which had been excavated for the purpose of re-laying sewer pipe. The trench had been principally dug by defendant, with some help from his son, on the day before and on the morning of the casualty, and was about 2 1/2 to 3 feet wide, 7 feet deep and approximately 60 to 70 feet long. It had straight, vertical walls and was not shored or braced. The dirt which had been removed in the digging process was piled mostly on the east side of the trench (which ran north and south), and was piled on that side to within a foot of the edge of the excavation and to a height of 5 or 6 feet.
Before defendant started excavating the trench he had called and requested plaintiff to help on the project. In response plaintiff presented himself at defendant's premises to assist in the digging operations. He arrived at about nine o'clock in the morning on the day after defendant started the work and found defendant working in the bottom of the trench. After talking to defendant for a minute or two, plaintiff also descended into the trench and commenced digging to uncover the sewer pipe. After throwing out a few shovelsful of dirt, plaintiff discovered that the trench was not coincident with the sewer line and talked to defendant about 'the problem of the sewer pipe being off to the side of the trench back in the wall', (on the east side of the trench where most of the dirt had been piled). Defendant then asked plaintiff to undercut the wall in order to expose the sewer tile. Plaintiff began to dig 'into the wall' and shortly thereafter, the trench collapsed at the place plaintiff had been undercutting and covered plaintiff's body 'about' up to his shoulders. The 'chunk' of dirt that fell on plaintiff was about 6 to 8 feet wide and varied in thickness from about a foot to 18 inches at the top to about 2 1/2 to 3 feet at the bottom. Plaintiff received painful, permanent and disabling injury to his right knee.
The defendant testified that the soil in which the trench was dug was soft, sandy, loose and crumbly--'what you might call river bottom soil'; that he did not warn plaintiff of the nature of the soil because he 'didn't think of it'; that the soil he had piled up on the east side of the trench had 'considerable weight to it'; that he had no knowledge and saw nothing to indicate that there was any danger to plaintiff in going into and digging in the trench; that it didn't occur to him that the piling of dirt on top of the trench increased the danger of it caving in; that there was no appearance, anywhere, that the trench was dangerous and unsafe; and, that 'the work that had to be done in removing this tile was obvious'. Defendant stated, 'I wouldn't have been in there if I had thought there was any danger'. There was no discussion at all between plaintiff and defendant about whether or not it was dangerous to work in the trench. Defendant further testified that the work plaintiff did was for the sole benefit of defendant and his wife.
Plaintiff testified that he did not observe any dangers of any kind when he arrived on the scene or after he got down into the trench. He stated that the dirt he saw piled up on top of the trench was black and 'looked like ordinary dirt', that he noticed nothing unusual about the dirt he shoveled out, and didn't notice anything in all the time he was shoveling that the earth was sandy or crumbling but that 'if I had of I'd have sure got out of there'. It was obvious to plaintiff that the trench was not braced or shored. Plaintiff neither expected nor received any pay for his assistance in digging the trench.
Some time prior to the events narrated above, defendant had helped plaintiff dig a trench on the latter's property from the house to a septic tank for the purpose of replacing lateral pipes. This operation was similar in nature to the trench excavation on defendant's property, except that the plaintiff's trench was smaller and shallower. Defendant received no pay for helping plaintiff on that occasion.
Plaintiff submitted his case to the jury on the theory that the trench wall was dangerous and unsafe and liable to cave in and injure a person undercutting into the east wall because it was composed of soft, sandy loam of such character that, unless shored or braced, would likely crumble and collapse, and because of the added weight of the dirt which defendant had removed and piled on top of the ground near the edge of the trench; that defendant knew or should have known of such danger and knew or should have known plaintiff was unaware thereof, but that he negligently failed to warn plaintiff of this peril; and, that defendant negligently instructed plaintiff to undercut the east bank.
The trial theory of defendant was that plaintiff failed to make a submissible case of actionable negligence because the evidence showed that any danger of a cave-in of the trench wall resulting from undercutting was obvious and equally apparent to plaintiff as to the defendant, that plaintiff voluntarily assumed the risk of injury; and, that plaintiff was guilty of contributory negligence which barred his recovery.
After the jury returned its verdict for plaintiff and judgment was rendered thereon, the defendant timely filed his motion to set aside that verdict and judgment and to enter a judgment in his favor in accordance with motions for directed verdict which he had previously filed, and, in the alternative, a motion for a new trial. The trial court sustained the first of the alternative motions without specifying the ground for such action, set aside the judgment previously rendered in plaintiff's favor, entered judgment for defendant, and overruled defendant's alternative motion for a new trial.
Plaintiff's first point is a complaint that the trial court failed to specify the ground upon which it set aside the verdict and judgment in plaintiff's favor and rendered judgment in favor of defendant, notwithstanding the motion upon which the court acted alleged numerous grounds. Plaintiff insists that such failure is a violation of the Civil Rules. We believe that plaintiff has only technical grounds for making this complaint.
The filing of defendant's after-trial motion to set aside the verdict and judgment and for judgment in accordance with his motion for a directed verdict together with his alternative motion for a new trial is sanctioned by Civil Rule 70.02, V.A.M.R. The same rule prescribes the duty of the trial court in acting upon those motions. The rule does not mandatorily require that the court shall specify its reason or ground for reopening the judgment, and directing the entry of judgment as if the requested verdict had been directed. In this case the order of the court is in literal compliance with Rule 70.02.
However, decisions of Missouri appellate courts indicate that the better practice would be for the trial court to specify its reasons for setting aside a previously rendered judgment and entering a judgment in accordance with a motion for directed verdict. In Johnson v. Kansas City Public Service Co. et al., 358 Mo. 253, 214 S.W.2d 5, the Supreme Court stated: Also, see Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782.
Plaintiff complains that an undue hardship has been cast upon him by the trial court's failure to specify the grounds for setting aside the jury's verdict and the judgment for plaintiff and entering judgment for defendant. Plaintiff insists that he is entitled to an order requiring defendant to assume the burden of proof to sustain the trial court's...
To continue reading
Request your trial
-
Graham v. Conner
...i.e., the want of the required degree of care, and actionable negligence. Cameron v. Small, Mo., 182 S.W.2d 565, 568(5); Kenward v. Hultz, Mo.App., 371 S.W.2d 344, 349. "It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existe......
-
McTurman v. Bell
...v. Ralston Purina Co., Mo.App., 202 S.W.2d 533(3); Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302; Kenward v. Hultz, Mo.App., 371 S.W.2d 344(6). Thus, where the things used in the work are not, in and of themselves, defective and are of the equivalent character and safety......
-
Hedgcorth v. Missouri Pac. R. Co.
...Light Company, 420 S.W.2d 274 (Mo.1967); Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967).9 Sellens, supra, n. 1; Kenward v. Hultz, 371 S.W.2d 344 (Mo.App.1963); Dixon v. General Grocery Company, 293 S.W.2d 415 (Mo.1956).10 Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299 (1946); Stou......
-
Ochs v. Wilson, 32821
...plaintiff's claim of actionable negligence for failure to keep a careful lookout. Cameron v. Small, Mo., 182 S.W.2d 565; Kenward v. Hultz, Mo.App., 371 S.W.2d 344. In order to make a submissible case it was incumbent upon plaintiff to produce substantial evidence from which the jury might r......