Laporte v. Cook

• Decision Date: 25 January 1899
• Citation: 21 R.I. 158,42 A. 519
• Parties: LAPORTE v. COOK, City Treasurer.
• Court: Rhode Island Supreme Court

42 A. 519

21 R.I. 158

LAPORTE

v. COOK, City Treasurer.

Supreme Court of Rhode Island.

Jan. 25, 1899.

Action by Joseph Laporte against Samuel P. Cook, city treasurer, to recover for injuries received by plaintiff while in the employ of defendant city. A nonsuit was granted, and plaintiff petitions for a new trial. Granted.

William G. Rich, for plaintiff.

Erwin J. France, for defendant.

TILLINGHAST, J. The evidence in this case shows that the plaintiff had only worked in the trench, where he was injured, for an hour or so when the accident happened; that he was directed by the boss or foreman in charge of the work to dig bell holes under the joints of the pipe which had been laid in the trench, which was 6 1/2 feet deep, in order that the joints could be properly calked; and that, supposing the place to be safe, he proceeded to execute the order, and, while doing so, the bank suddenly caved in upon him, and seriously injured him. The evidence further shows that the trench was curbed or shored up with boards a part of its length, but that there was no curbing in that part of the trench where plaintiff was injured; that no boards or other materials were furnished by the city for that purpose; that the boards which were used for sheathing or curbing were borrowed from a man who lived near by, and that not enough could be found to sheath the place in question; that the trench had previously caved, in two or three places, and some of the workmen had come near getting caught thereby, which fact was known to the boss, but not to plaintiff; and that the boss had been told by some of the workmen that the trench was dangerous. There is evidence that plaintiff was exercising due care when the accident happened, and that he had not been accustomed to dig trenches of this sort,—that is, of this depth, —but had dug shallow ones, where no curbing was necessary. In view of this testimony, we think the common pleas division erred in granting a nonsuit. The conduct of the plaintiff in going into the trench to dig the bell holes, as directed by his boss, was not, as matter of law, in view of the facts aforesaid, a negligent act. Nothing appearing dangerous to him in connection with the trench, he had the right to presume that it was reasonably safe, or, at any rate, that if there were special elements of danger, not obvious to ordinary observation, but known to his boss, he would be notified thereof. In this regard the case is materially different from Larich v. Moies, 18 R. I. 513, 28 Atl. 061, which is relied on by defendant's counsel. There the plaintiff knew of the danger in question. Moreover, in that case the danger from the overhanging bank was an obvious one, and, by continuing his work, the plaintiff assumed the risk of being injured from the falling of the bank. In the case at bar the plaintiff did not have the advantage of the knowledge of the peculiar character of the soil which the other workmen had acquired by digging therein, and much less that the bank of the trench had already caved in several places, but he was sent at once to the bottom of the trench, which was entirely new to him, to dig bell holes, and was almost immediately buried by the caving in of the bank. Whether he was guilty of contributory negligence in such circumstances was a question of fact for the jury. Pilling v. Machine Co., 19 R. I. 666, 36 Atl. 130. It cannot be said, as matter of law, that the plaintiff assumed the risk when he was ignorant of facts on which, perhaps, a proper appreciation of the risk depended (Breen v. Field, 157 Mass. 277, 31 N. E. 1075), although, of course, he must be held to have assumed such risks...