Kielty v. Buehler-Cooney Const. Co.

• Decision Date: 27 November 1906
• Citation: 97 S.W. 998,121 Mo. App. 58
• Parties: KIELTY v. BUEHLER-COONEY CONST. CO.
• Court: Missouri Court of Appeals

97 S.W. 998

121 Mo. App. 58

KIELTY v. BUEHLER-COONEY CONST. CO.

St. Louis Court of Appeals. Missouri.

November 27, 1906.

Rehearing Denied December 11, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to an employé, contributory negligence held, under the evidence, a question for the jury.

2. SAME—NEGLIGENCE.

In an action for injuries to an employé negligence of foreman held, under the evidence, a question for the jury.

3. SAME—DUTIES OF MASTER—INSTRUCTIONS.

In an action for injuries to an employé in a sewer, caused by the falling of a bulkhead, an instruction that it was the employer's duty to furnish employé a reasonably safe place to work, and that the employer was liable if the bulkhead was dangerous to work about because not properly braced, where such fact was known to the foreman, or could have been known by the exercise of ordinary care, and where the employé was himself in the exercise of due care, and the bulkhead fell on him because of its not being properly braced, was not erroneous, though the statement that it was the employer's duty to furnish a safe place was too strong, as the remainder of the instruction showed that the extent of the duty intended to be required of the employer was to use ordinary care to furnish a safe place.

4. DAMAGES—EXCESSIVE DAMAGES—PERSONAL INJURIES.

In an action for personal injuries, a verdict of $1,000 was not excessive where it appeared that the injuries prevented plaintiff from working for 17 weeks; that he received a large gash on his face; that one of his eyes was slightly,

but permanently, injured; that his shoulder was hurt so that its movement was unduly circumscribed; and that his hip was severely bruised.

Appeal from St. Louis Circuit Court, Jesse A. McDonald, Judge.

Action by John Kielty against the Buehler-Cooney Construction Company, for injuries received in the construction of a sewer. From a judgment for plaintiff, defendant appeals. Affirmed.

Respondent received personal injuries from a bank of earth falling on him while he was at the bottom of a sewer ditch. The appellant company was engaged in putting in a sewer on Florissant avenue in St. Louis in the spring of 1905, and had nearly 100 men employed in the work. In digging the trench the earth would be taken out in sections 4 feet apart; that is to say, separate trenches 16 feet long, 4 feet wide and 14 feet deep were dug and a solid wall of earth 4 feet wide was left between them. When two sectional trenches had been dug the requisite depth of 14 feet, tunnels would be excavated from one to the other at the bottom level, through the 4 feet of intervening earth, so as to connect the trenches and permit the laying of sewer pipes. The tunnels were excavated from the opposite ends of this solid partition, which is called a bulkhead; that is, half the tunnel was cut from one end and half from the other. Plaintiff was working in one of these trenches with an assistant named Holloran. They had dug the trench the required depth, and were ready to dig out the bulkhead so as to connect the trench they were in with the next one. Kielty was using a pick to loosen the earth, and Holloran was taking the dirt away with a shovel and throwing it on a platform about halfway up the side of the trench, whence it was thrown by another workman onto the surface of the ground at the top. Paul Cooney, a brother of the president of the defendant company, was foreman and in charge of the work, with authority to hire and discharge men and generally to control their operations. It is customary to brace the ends of the trenches with planks or boards so as to prevent caving; and the bulkheads or sections of earth left between the trenches might be braced too, if bracing appeared to be necessary to prevent them from caving. Kielty and Holloran began the excavation of the bulkhead about 2 o'clock in the afternoon and when they had dug into it about a foot and a half, Cooney was at the top of the trench where they were at work. Kielty swore he said to Cooney the bulkhead or earth did not look very good and he (Kielty) wanted some more braces to put in to hold it. Cooney replied: "What is the matter with you? Go ahead. You go to work. That is all right." This testimony is corroborated by Holloran, but denied by Cooney. The latter admitted that, if he was around, he would be the proper person for respondent to ask for bracing timbers, and that it was his (Cooney's) duty to see that the work was done right and the bracing made safe; that it would have been his duty, if asked by respondent for bracing material, to have sent it down to him; but he said he did not have braces furnished for the bulkhead in question because he was not asked for them. He also admitted directing the bracing of the trenches on both sides as the work progressed; a statement which agrees with Kielty's statement that he (Kielty) put in bracing on the sides with the foreman standing over him, and did not brace the bulkhead at the same time because the planks were too short; saying it would have done no good to ask for longer planks while the foreman was there looking at the work; an expression which we take to mean that, as the foreman saw the planks were too short to brace the bulkhead and did not see fit, on his own motion, to call for longer planks, he would not have done so on a request from the workmen. Cooney further testified that he inspected the work including the bulkhead that fell, from time to time, as it was part of his business to do, but that he did not pay any attention to the particular spot where the dirt caved, and saw nothing to indicate danger. Holloran swore he and respondent did all their work, including the bracing of the trench, under the foreman's orders, the latter directing where each brace should be placed. About half an hour after Kielty, according to his testimony, had requested bracing material to support the bulkhead, a mass of earth at the top of it became detached and fell on him, inflicting injuries. One witness for appellant, a workman in its employ by the name of O'Connor, swore he would not work where he thought there was danger of the earth caving in, even if he was ordered to do so, but he said the consequence of his refusal would be the loss of his job. Some testimony indicates the weather was rainy and the soil wet. For appellant the evidence was that the men were expected to watch the condition of the trenches as the digging went on, tap the soil in order to ascertain if it was solid or likely to crumble, and put in bracing when, in their judgment, it was needed to make the trenches safe. Ample bracing material was kept at the top of the ditches and could be handed to the diggers when they wanted it. Respondent's injuries prevented him from working for 17 weeks. He was thrown down by the bank of earth which fell on him, his face was forced against the point of his pick and a large gash cut in it, one of his eyes was slightly, but, it seems, permanently injured, his shoulder was hurt so the movement of it was unduly circumscribed and his hip was severely bruised.

The acts of negligence charged against appellant are failure to furnish respondent a safe place to work, and, instead, ordering him to work at a place in the sewer ditch where it was not properly and securely braced; ordering him to work at a place which appellant, or its foreman, knew, or by ordinary care could have known, was not reasonably safe. The defenses interposed in the answer were a general denial, and a plea in bar consisting of averments that it was appellant's duty to furnish respondent timbers to brace the trench and respondent's duty to do the bracing as he saw fit, and also his duty to test the firmness of the walls of the trench and support them where they needed support; that if respondent was injured, the occurrence was due to his own neglect in not ascertaining the need of support, failing to support the bulkhead, working beneath it without either testing or bracing it, and excavating the trench in a careless manner while on his knees with his pick above his head. The reply was a general denial. A demurrer to respondent's case was overruled and appellant excepted. The other error assigned is that the damages assessed were excessive. The verdict was for $1,000, and, judgment having been entered for that sum, defendant appealed.

Holmes, Blair & Koerner, for appellant. S. P. Bond, for respondent.

GOODE, J. (after stating the facts).

The contention that a verdict for appellant should have been ordered is rested by counsel on these propositions, affirmed by them to be sound: First, respondent possessed more skill and had enjoyed a longer experience in putting in sewers than the foreman, and therefore cannot be justified in relying on the experience of the latter and his...