Littig v. Urbauer-Atwood Heating Co.
| Citation | 237 S.W. 779,292 Mo. 226 |
| Parties | JOHN LITTIG v. URBAUER-ATWOOD HEATING COMPANY, Appellant |
| Decision Date | 18 February 1922 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.
Affirmed.
R. L Goode and G. B. Arnold for appellant.
(1) If the side of the trench which fell on the plaintiff was not undercut as much of the evidence goes to prove, then the risk of injury from the earth falling was an ordinary risk of the plaintiff's task, for all the evidence is to the effect that it was not necessary or customary to shore up the sides of a trench of that depth, when they are not undermined. An employee assumes the risks ordinarily incident to his task after the employer has used ordinary care to provide him with a reasonable safe place in which to work. Fish v. Railway, 263 Mo. 106. (2) If the side of the trench was undermined to the depth alleged in the petition, and which some of the testimony goes to prove, then the danger to the plaintiff in working in the trench (especially as he worked in a bent-over position) was so imminent and obvious that he was guilty of contributory negligence as a matter of law. Aldridge's Admr. v. Furnace Co., 78 Mo. 559; Lucey v. Oil Co., 129 Mo. 32; Holloran v. Iron Co., 133 Mo. 470; Harff v. Green, 168 Mo. 308; Watson v. Coal Co., 52 Mo.App. 366; Olsen v. McMullen, 34 Minn. 94; Peterson v. City of Rushford, 41 Minn. 289; Reiter v. Railroad, 72 Minn. 225; Kletschka v. Railroad, 80 Minn. 238; Stuart v. Mfg. Co., 15 Ind.App. 184; Griffin v. Ry. Co., 124 Ind. 326; Swanson v. Lafayette, 134 Ind. 625; Simmons v. Railroad, 110 Ill. 347; Montgomery Coal Co. v. Barringer, 218 Ill. 332; Rassmussen v. Railroad, 65 Iowa 236; Hodgson v. Railroad, 146 Mich. 627; Carlson v. Water Co., 8 S.D. 47; M., K. & T. Railroad v. Spellman, 34 S.W. 298; Kelly v. Cowan, 49 Wash. 606; Naylor v. Railroad, 53 Wis. 661; Paule v. Mining Co., 80 Wis. 356; Pohlmann v. Foundry Co., 123 Mo.App. 219. (3) An employee is guilty of negligence that bars recovery for an injury when he encounters an obvious peril that a man of ordinary prudence would not encounter without protest. Therefore, all the cases cited above are apposite, though some of them were decided in jurisdictions where the plaintiff was said to have assumed risk. Patrun v. Railroad, 259 Mo. 109, 121. (4) The evidence for the plaintiff showed that he was guilty of contributory negligence as a matter of law, and the court should have given the instruction requested by the defendant that under the law and the evidence the plaintiff was not entitled to recover and the verdict should be for the defendant. Duesching v. Gas Co., 73 Mo. 229; Milburne v. Railroad, 86 Mo. 109; White v. Railroad, 250 Mo. 482. (5) "It is the settled doctrine of this court that if upon the pleadings and undisputed facts the judgment is for the right party, there can be no reversal, no matter what errors intervened upon the trial." Bartley v. Ry. Co., 148 Mo. 142. (6) Where "it satisfactorily appears" that the trial court has "arbitrarily and unreasonably exercised" its discretion in granting a new trial on the ground that the verdict is against the evidence, the order will be set aside on appeal to the Supreme Court. Chouquette v. Ry. Co., 152 Mo. 267; Lee v. Knapp & Company, 137 Mo. 392. (7) "It is generally held an invasion of the province of the jury to set aside a verdict that is not clearly or decidedly against the evidence or the weight of the evidence." 29 Cyc. 824. (8) "When the correctness of the verdict depends on the credibility of witnesses, it should seldom be disturbed." 29 Cyc. 830. (9) The "prerogative and obvious duty of this court in 'this case' is to review the action of the trial court and determine from the law and the facts of the case whether the circuit court exercised a sound judicial discretion." Haven v. Ry. Co., 155 Mo. 216.
W. H. Douglas for respondent.
(1) The granting of a new trial on the ground that the verdict is against the weight of the evidence is discretionary with the trial court, and his action in granting a new trial will not be disturbed by an appellate court "except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand." State ex rel. v. Ellison, 268 Mo. 232; Lyons v. Carder, 253 Mo. 561; Foley v. Harrison, 233 Mo. 507; Smoot v. Kansas City, 194 Mo. 532; Casey v. Transit Co., 186 Mo. 232; Fitz John v. Transit Co., 183 Mo. 78. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Kielty v. Const. Co., 121 Mo.App. 58; Smith v. Kansas City, 125 Mo.App. 150; 8 Thompson on Negligence, sec. 3912; Barnard v. Brick Co., 189 Mo.App. 417; Grace v. Walsh, 201 S.W. 582; Medley v. Mining Co., 207 S.W. 887; Bartolomeo v. McMahon, 178 Mass. 242; Grier v. Guarino, 214 Mass. 411; Coan v. City, 164 Mass, 206; Hennessy v. Boston, 161 Mass. 502; Breen v. Field, 159 Mass. 582; Baucino v. Fitzpatrick, 186 Mich. 1; Smith v. York Rys. Co., 237 Pa. 280. (3) The purported unsigned statements of plaintiff and other witnesses in the handwriting of the claim agent which the witnesses denied they executed were incompetent. Thomure v. Railroad Co., 191 Mo.App. 653; Gass v. U. Rys. Co., 232 S.W. 160. (4) The court committed error in giving Instructions 8 to 13. and Instruction 15. Setzler v. St. Ry. Co., 227 Mo. 454; Riebenhauer v. Railroad Co., 162 Mo. 270; Nelson v. Railroad, 113 Mo.App. 707; Sens v. Ry. Co., 112 Mo.App. 82; Hensler v. Stix, 113 Mo.App. 175; Caroll v. McDonald, 139 Mo.App. 540; McCaffery v. Railroad, 192 Mo. 159; Harrison v. Lakenan, 189 Mo. 599; Bank v. Stam, 186 Mo.App. 539; Knoell v. Lutz, 210 S.W. 927; Knapp v. Hauley, 153 Mo.App. 174; Williamson v. Railroad Co., 133 Mo.App. 381; Zeis v. Brewing Assn., 205 Mo. 653; Seeger v. Silver Co., 193 Mo. 410; Orris v. Railroad, 279 Mo. 10; Lord v. Delano, 188 S.W. 95; Dungan v. Railroad Co., 178 Mo.App. 171; Disbrow v. Co., 138 Mo.App. 56; Richardson v. Railway Co., 166 Mo.App. 162; Tallman v. Nelson, 141 Mo.App. 486; Zeis v. Brewing Assn., 205 Mo. 638, 648; Felder v. Railroad, 216 Mo. 208; Wise v. Traction Co., 198 Mo. 559; Turnbow v. Ry. Co., 272 Mo. 65; Tillery v. Harvey, 214 S.W. 248; 4 Thompson on Negligence, p. 66, sec. 3785; Wilt v. Caughlin, 176 Mo.App. 280.
RAILEY, C. White and Reeves, CC., concur.
Plaintiff commenced this action in the Circuit Court of the City of St. Louis, Missouri, on January 15, 1921. The case was tried on an amended petition, which alleges that defendant was a corporation, doing business in the city of St. Louis aforesaid; that on August 4, 1919, the date of plaintiff's injury, the defendant was engaged in laying and connecting underground sprinkling or sewer pipes, at what is commonly called the General Motors Plant, near Union Avenue and the Natural Bridge Road, in said city; that on the above date, plaintiff was employed by defendant, and was engaged in laying and connecting sprinkler or sewer pipes in a ditch that had been furnished by defendant in which to lay and connect said pipe; that said ditch was from four to six hundred feet long, about three and one-half feet wide, and about five feet deep; that about ten feet south of where plaintiff was hurt, a pit had been dug in said ditch, about ten feet long, about eight feet wide, and about the depth of said ditch; that said pit was dug to lay therein what was called "crosses" or "T's" and "elbows," used in connecting pipe; that on the east side of said ditch, from about the pit northward twenty feet, the east wall of said ditch had been dug under, or undermined, for about ten or twelve inches, by digging on the side of said wall about two feet from the bottom, and sloping inward to the bottom of the ditch; that about fifteen or twenty feet north of the point where plaintiff was injured, and near where the ditch had been undermined, a bridge had been built over said ditch, for use in hauling heavy truck and wagon loads of material. The petition alleges that on August 4, 1919, while plaintiff was at work for defendant laying or connecting pipe in said ditch, where the east wall of said ditch had been dug under, or undermined, the east wall caved in, and permanently injured him.
The petition further alleges that said ditch was undermined at the point aforesaid to make it wider at the bottom, so as to make room for the pipe or pipes which plaintiff was laying as the ditch was not wide enough at said point, as originally dug, to lay said pipe in the position that plaintiff was instructed to lay it; that instead of digging the ditch wider at said point from top to bottom so as to leave the walls perpendicular at said point, the defendant dug it wider at the bottom, by digging it under the east side of the ditch, or undermining it as aforesaid. The petition then alleges that plaintiff's injuries were directly caused on account of the negligence of defendant in failing to furnish plaintiff a reasonably safe place in which to work, in this, to-wit: That defendant knew, or by the exercise of ordinary care could have known, that the ditch where plaintiff was at work, and where it was undermined as aforesaid, was apt to cave in or fall, unless propped or supported or shored up; that defendant negligently failed to prop, support, or shore up the walls or side of said ditch, where it was undermined, thereby causing it to cave in or fall on plaintiff; that defendant knew, or by the exercise of ordinary care could have known or should have anticipated, that there was danger of the wall or side of the ditch caving in, if dug under, or undermined in the manner aforesaid, unless the side where dug under or undermined was supported; that had defendant exercised ordinary care for the safety of plaintiff, and...
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