King v. Terry

• Citation: 14 S.W.2d 969
• Decision Date: 04 March 1929
• Docket Number: No. 16520.,16520.
• Parties: KING v. TERRY et al.
• Court: Missouri Court of Appeals

14 S.W.2d 969

KING v. TERRY et al.

No. 16520.

Kansas City Court of Appeals. Missouri.

March 4, 1929.

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

"Not to be officially published."

Suit by Katherine King against C. F. Terry and G. V. Terry, partners, doing business under the firm name and style of C. F. Terry & Co. Verdict for plaintiff, and defendants appeal. Reversed and remanded.

Cowgill & Popham, of Kansas City, for appellants.

Cope & Hadsell and C. F. Warner, all of Kansas City, for respondent.

BARNETT, C.

This is a suit for wrongful death. Plaintiff is the wife of Edward D. King, deceased. In her petition she alleged that her husband came to his death on September 25, 1926; that at the time of his death he was an employé of the defendants as a plumber's helper; that the deceased, at the request of defendants, started an excavation for laying a sewer; that, while he was at work, the trench collapsed, and thereafter he was found dead. It was alleged that defendants were negligent, in that they furnished deceased with old worn-out and defective lumber for bracing and shoring purposes; that defendants were negligent, in that they furnished deceased lumber for shoring and bracing purposes which was not of sufficient strength to shore or brace the particular ditch in question; that defendants were negligent, in that they failed to furnish deceased with suitable lumber with which to properly shore and brace the ditch; that defendants were negligent, in that they knowingly permitted deceased to dig the ditch, well knowing that said ditch was being dug in filled and spongy ground, and that there was danger in going ahead with the excavation in question, and they negligently and carelessly failed to warn deceased of the attendant danger in connection therewith; that defendants were negligent, in that they failed to furnish deceased with sufficient help and labor to properly and safely excavate the ditch; that defendants were negligent, in that they failed to furnish deceased a reasonably safe place in which to work; that they negligently failed to furnish deceased sufficient and proper tools, materials, and appliances with which to properly and safely dig and excavate the ditch; that they negligently failed to furnish additional help and additional tools and appliances when requested to do so by deceased. The answer was a general denial, a plea of contributory negligence, and assumption of risk.

The plaintiff's evidence was to the effect that deceased had worked for defendants something under two years as a common laborer or plumber's helper. While acting within the scope of his employment, he began digging a ditch to connect a residence property at number 41 West Seventy-Third Terrace in Kansas City, Mo., with the public sewer. He started the excavation at the residence and dug toward the main sewer. One of the defendants told Mr. Athey, another employé, to take the barricading out to Mr. King. Pursuant to this direction, Mr. Athey collected some lumber which was in defendants' material yard and delivered it to Mr. King. This witness described the material as follows:

"Q. What kind of material was it? A. Well, it was all kinds of material.

"Q. Can you describe it? A. Well, there was — I don't know, some of it was four by four and some of it was what they call crating and others was boards of, oh, I judge five-eighths or something like that, and six or eight feet long, and short pieces, different dimensions. I don't just recall all of them.

"Q. Was this lumber or whatever you hauled out there old or new? A. Well, there was some old and some new.

"Q. Can you give us some idea as to what the majority of it consisted of, as to whether it was old or new? A. I don't know what you would call new lumber. If new lumber is what you would go to the house to get, some of it was new lumber and some of it was not.

"Q. Had all the lumber that you took out to this particular job on West 73rd Street Terrace been used before, or did you go and buy new lumber that day? A. No, sir, I never bought any that day.

"Q. You just took what you had there? A. Yes, sir.

"Q. Was there any discussion between you and Mr. Terry as to the kind that you should take out there? A. Not that I recall, unless he just said take the lumber out to King, that is all.

"Q. Did you take all that you had there? A. Yes, I am pretty certain that we taken all that was usable there."

The witness further states that crating is what comes on bathtubs, sinks, and lavatories; that it is pretty thin; that is, it is not five-eighths of an inch thick; that there were probably two or three or four bathtub tops in the load that he took out. Mr. Athey testified that at the time he delivered the lumber Mr. King was digging by the driveway on the north end of the ditch, and that he delivered the lumber about a week or ten days before the ditch caved in. The evidence shows that Mr. King was found dead in the ditch about fifteen feet from the main sewer. He was covered by dirt which had caved in from the sides. At the time he was found, the ditch had been dug from the residence to the main sewer, and was sufficiently shored on both ends. There was a space of about eight or ten feet that had caved in, and a few boards were found in the loose earth when the body of deceased was uncovered. Plaintiff's evidence tended to show that the excavation was in filled ground; and, because of this fact, it was necessary to make an open ditch all the way, although in some cases the laborers resort to tunneling at the end near the main sewer. An experienced plumber, Mr. Howell, testified for plaintiff as follows:

"Q. What is the customary size for shoring used for ditches of that kind, considering the depth and the spongy condition of the ground? A. Well, as a general rule a man will use what he has. If he has something his judgment will tell him that will hold. Ordinarily lumber, I will say, cannot be too thick, cannot be too heavy for barricading."

The witnesses for plaintiff did not affirmatively state that there was no additional lumber at the place where the work was done at the time they discovered the body of Mr. King, but they did testify that they did not notice any additional lumber. The plaintiff testified that she talked to one of the defendants after the death of her husband, and, in answer to her question how it happened that her husband had to die like this, he answered that he was sorry, but, if the lumber had been strong enough, it would not have happened. There was a verdict for plaintiff, and defendant appealed.

Opinion.

Appellant contends that a demurrer to the evidence should have been sustained in this case, for the reason that the evidence failed to show that there was any negligence upon the part of defendants, and because deceased was guilty of contributory negligence as a matter of law. The trial court submitted plaintiff's case to the jury upon one theory of negligence only; namely, whether defendants failed and neglected to exercise ordinary care to provide suitable and sufficient lumber to properly shore and brace the walls of the ditch. Respondent relies upon the case of Steffenson v. Roehr Co., 136 Mo. App. 225, 116 S. W. 451, in which the court used the following language:

"A servant is not a mere machine employed to drive a nail here or a spike there, where directed by the master, or someone representing him. Many things involving the exercise of judgment may properly be left to the servant. Hence it has been held, where the master employs competent workmen, and provides suitable material for staging and intrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform," there is no liability "to one of the workmen for injury resulting to one of them from the falling of the staging."

This language was adopted by this court from the case of Bowen v. Chicago, B. & K. C. R. Co., 95 Mo. 268, loc. cit. 277, 8 S. W. 230, 232. The respondent seems to rely upon this language upon the theory that it is the duty of the employer to furnish suitable material, and it is only when this duty is performed that he may rely upon the servant to use his own judgment in the use of the materials. The evidence in this case does not disclose just what material would be suitable for shoring a ditch. It does show that the deceased was in sole charge of the excavation; that he, and he alone, was in a position to determine what part of the earth was solid and what part was more...