Leonard Martin Const. Co. v. Highbarger

• Decision Date: 02 November 1909
• Docket Number: 1,944.
• Citation: Leonard Martin Const. Co. v. Highbarger, 175 F. 340 (6th Cir. 1909)
• Parties: LEONARD MARTIN CONST. CO. v. HIGHBARGER.
• Court: U.S. Court of Appeals — Sixth Circuit

175 F. 340

LEONARD MARTIN CONST. CO. v. HIGHBARGER.

No. 1,944.

United States Court of Appeals, Sixth Circuit.

November 2, 1909

Daugherty & Todd, for plaintiff in error.

Jones &amp Jones, for defendant in error.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

WARRINGTON Circuit Judge(after stating the facts as above).

The charge of the court to the jury is not included in the record; nor is any special instruction that may have been requested by either side and given or refused.The only assignments of error that need be noticed relate to the evidence.One arises upon an exception to the admission of testimony as to a certain conversation said to have occurred between the superintendent and one of the foremen of plaintiff in error; and the other two are based upon the court's refusals to direct a verdict, in the first place at the close of the testimony of plaintiff in error, and in the next place at the close of all the evidence offered at the trial.

At the time of the accident plaintiff in error was engaged as the principal contractor for the removal of an old roundhouse and the construction of a new one for the Baltimore & Ohio Railroad Company.The trench mentioned in the statement comprised what was called a drop pit and a jack pit.The drop pit was 7 1/2 feet wide, 5 feet deep, with perpendicular sides, and 75 feet long.The jack pit was placed along the central portion of the drop pit, and was 3 feet wide and 5 1/2 feet in depth below the bottom of the drop pit.A cement wall, of 8 inches in thickness and 3 1/2 feet in height, had been placed on each side of the jack pit, when defendant in error, Highbarger, a carpenter, was directed by his foreman to enter the trench and engage in the construction of a wooden frame for temporarily holding and forming other cement work.

While leaning forward in doing his work, with his feet upon one of these walls in the jack pit, a portion of the north side of the drop pit behind him gave way and caused his injury.No bracing had been placed in the drop pit to support the sides.Highbarger had done similar work in the jack pit at different times within a few days of his injury, which occurred November 30, 1906.The excavation had been made about six weeks before.

Highbarger had no part in the excavation of either of the trenches described, but was engaged and worked solely as a carpenter.He was in the employ of the construction company.The company's general superintendent of the entire work was a man named Park, who was constantly on the work and in control; and a foreman of the company's carpenters was in immediate charge of Highbarger and certain other carpenters working with him.It was alleged in the petition and answer and proved at the trial, that the excavation was made in filled material, not in natural ground.This fact, coupled with the claim of each party that the other understood the character of the materials composing the fill, was made the basis of the charge by each that the other was in fault.

The company waived its exception to the denial of the motion to direct a verdict in its favor at the close of plaintiff's testimony; for, instead of standing on its exception, it introduced testimony in its own behalf.Detroit Crude Oil Co. v. Grable,94 F. 73, 75, 36 C.C.A. 94;Union Pac. Ry. Co. v. Daniels,152 U.S. 684, 687, 14 Sup.Ct 756, 38 L.Ed. 597;Spalding v. Castro,153 U.S. 38, 43, 14 Sup.Ct. 768, 38 L.Ed. 626;Runkle v. Burnham,153 U.S. 216, 222, 14 Sup.Ct. 837, 38 L.Ed. 694;Sigafus v. Porter,179 U.S. 116, 121, 21 Sup.Ct. 34, 45 L.Ed. 113;Traction Co. v. Durack,78 Ohio St. 243, 85 N.E. 38.

During the progress of the trial exception was taken by the construction company to the admission of testimony of one Oliver Lawhead(foreman of certain of the company's carpenters, but not including Highbarger and those working with him under another foreman) to the effect that, two or three weeks prior to the accident, Lawhead told Superintendent Park that the bank of the trench looked to him 'like it was dangerous and should be propped up'; to which Park answered, 'Oh h . . . l, it will not fall in.'This testimony, subject to like exception of the construction company, was corroborated by one Smart, a fellow workman of Highbarger.It is true, as claimed by counsel, that the bank mentioned in the conversation was not in specific terms located by either Lawhead or Smart, and Park testified that the conversation did not take place; but it is reasonably certain, from all the questions and answers upon the subject, that the bank in question was the one that counsel and the witnesses had in mind.

The testimony was competent.The conversation took place, if at all, between two representatives of the construction company, one a foreman of carpenters, and the other the superintendent, and it amounted at least to notice.The construction company is an Illinois corporation, and, so far as appears in the record, Superintendent Park was its principal and controlling representative in Ohio.

This fact is mentioned only to accentuate the plenary character of the agency.If any one on behalf of the corporation was authorized to receive or acknowledge notice of the dangerous condition of the bank and of the necessity for bracing, or was authorized to control the mode of conducting the work, or to commit the company for failure to provide the employes with a place of reasonable safety in which to perform their work, it was this superintendent, not to speak of Lawhead, the foreman.

In Bartolomeo v. McKnight,178 Mass. 242, 247, 59 N.E. 804, 805, an action for personal injuries caused by the caving in of the side of a trench, the court passed upon the competency of a conversation similar to the one in question.It said:

'The fact that the foreman's attention was called to the danger of the trench and the need of bracing seem to us to have been clearly competent on the question of negligence on his part.'

To the same effect, respecting another kindred conversation, is the decision in Brady v. Norcross,174 Mass. 442, 54 N.E. 874.

In Parker v. Boston & Hingham Steamboat Co.,109 Mass. 449, 451, when passing upon the question of negligence touching the condition of a gangway plank used by passengers in boarding the boat, the court said:

'Testimony that the attention of the agents or servants of the defendants was called to the insecure condition of the plank was competent to show such negligence.'

See, also, New York Electric Equipment Co. v. Blair,79 F. 896, 897, 25 C.C.A. 216;Harder & Hafer Coal Min. Co. v. Schmidt,104 F. 282, 285, 43 C.C.A. 532;Hoyt v. Jeffers,30 Mich. 181, 189.

It remains to consider the exception to the refusal to direct a verdict at the close of all the evidence.The point of the complaint is that Highbarger possessed such knowledge of the fill and of the materials composing it as to enable him to observe and appreciate the danger and so to charge him with the risk of entering upon the work he was doing when he met with his injury.The comparison thus suggested between the duty of an employer and that of an employe to determine the liability of filled material to fall when exposed to excavation, is important.Highbarger, as before stated, took no part in making the excavation, and had no experience in that respect.He did not hear the Lawhead-Park conversation, and he testified, in substance, that he did not know of the tendency of such material to fall under conditions like those in question.

Can it be true that all fills, or all fills like this one, are so obviously calculated to slide into excavations made in them as to suggest danger to men of Highbarger's class and experience?Was the court, as matter...