Larich v. Moies

• Decision Date: 14 March 1893
• Citation: 18 R.I. 613,28 A. 661
• Parties: LARICH v. MOIES, Town Treasurer.
• Court: Rhode Island Supreme Court

28 A. 661

18 R.I. 613

LARICH

v. MOIES, Town Treasurer.

Supreme Court of Rhode Island.

March 14, 1893.

Action by Oliver Larich against Charles P. Moies, treasurer of the town of Lincoln, for damages for personal injuries. Nonsuit ordered. Plaintiff petitions for new trial. Denied.

Peter J. Quinn, for plaintiff.

Benjamin M. Bosworth, for defendant.

STINESS, J. In April, 1892, the plaintiff was in the employ of the town of Lincoln, shoveling sand at a bank, which left an overhanging crust. The plaintiff saw it. One of his fellow laborers went to knock it down, and the foreman was told that it was dangerous; but he called back the laborer, saying: "There is no danger. You load up. I don't want the bank at present. I want the sand, and must have it." He also said that, after they had got one load of sand, he would throw down the bank. The commissioner of highways had previously notified the men, including the plaintiff, to be careful about the danger from the bank. Before the load was completed, the bank fell, and the plaintiff was injured. Upon this state of facts, shown at the trial, the plaintiff was nonsuited. We think the nonsuit was rightly or dered. The danger from the overhanging bank was open to the observation of all. If the danger was obvious, then the plaintiff voluntarily assumed an evident risk, and a risk incident to his employment. If it was not obvious, there is nothing to show negligence.

For aught that appears, the foreman simply erred in judgment, and this is all the more probable from the plaintiff's own statement that he had been in places where he would suppose there was ten times more danger than there was there that day. In either case the plaintiff would have no right to recover. This is clearly set forth in Griffin v. Railway Co., 124 Ind. 326, 24 N. E. 888. See, also, Kenney v. Shaw, 133 Mass. 501. But if the direction of the foreman to go on digging be assumed to be negligence, under the circumstances, still it was the negligence of a fellow servant, for which the town would not be liable. The plaintiff was familiar with work in such places. The town was not shown to be negligent in its selection of servants or appliances. The manner of proceeding with the work was committed to a foreman or "boss," and this involved the exercise of such discretion and judgment only as belongs to a coworker in a superior grade. No duty of a master was omitted or violated, but the negligence, if there was negligence, was purely that of a...