Moore v. Village of Naponee
| Decision Date | 16 February 1918 |
| Docket Number | 20379 |
| Citation | 166 N.W. 548,102 Neb. 2111 |
| Parties | CHARLES E. MOORE, APPELLEE, v. VILLAGE OF NAPONEE, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Franklin county: HARRY S. DUNGAN JUDGE. Affirmed.
AFFIRMED.
Flansburg & Flansburg, for appellant.
W. H Miller and George A. Adams, contra.
SEDGWICK, J., not sitting.
This is the second appeal in this case. The action was for damages caused by the alleged negligence of the defendant Village. The first trial in the district court resulted in a judgment for the plaintiff, and the defendant appealed. The cause was submitted to the commission, and a reversal was recommended. On the second trial the plaintiff had the verdict and judgment for $ 750. The defendant has appealed.
The facts as shown by the evidence are in substance as follows: On the second day of October, 1911, the defendant, an incorporated village of Franklin county, was engaged in constructing a sidewalk or bridge across a stream, called Turkey creek and within the corporate limits of said village. By an ordinance of the village trustees, the president of the village board, one G. C. Strimple, and one George S. Gillard, a member of the board, were designated to take charge of the work. They employed the plaintiff, Charles E. Moore, and one C. J. Hartt as day laborers, and set them to work. It seems that it was necessary to excavate a trench on the west bank of the creek in order to construct a concrete abutment for the bridge or sidewalk over the water-course. The plaintiff, together with Hartt, were set to work digging the trench by the president, Strimple, and the trustee Gillard. They proceeded to excavate a trench about 2 feet wide, 14 feet long, and from 7 to 8 feet deep. When they had about completed the excavation, the west bank of the trench caved in onto the plaintiff and injured him rather severely.
The negligence of which the plaintiff complains was defendant's failure to shore up or brace the walls of the trench, or to furnish the plaintiff and Hartt with timbers and materials with which they could have braced the walls of the trench, and thus have provided themselves with a safe place to work.
The record discloses that, after plaintiff had introduced his evidence, the defendant demurred to its sufficiency, and requested the court to direct the verdict in its favor. The demurrer was overruled, and the requested instruction was refused. For this ruling the defendant assigns error, and contends that the evidence was insufficient to show any negligence on its part.
It is a somewhat significant fact that, when the case was before us on the first appeal, the judgment was reversed, because of the recommendation of the commission, for the reason that the plaintiff had failed to produce any evidence of a custom or a necessity to brace or shore up the walls of the trench or excavation. The record of the second trial supplies this evidence. And Mr. Clarence Davis testified that he had been engaged in building bridges in Franklin county for more than two years, and had constructed a large number of them; that he knew the custom and the necessity of the work; that in excavating trenches in which to lay concrete abutments it was his custom, and it was necessary, to brace or shore up the side walls to prevent them from caving in. He also testified that he had constructed a foot-bridge across a creek in Naponee, near where the one in question was constructed. He thus showed his competency to testify as to such a custom and necessity.
The evidence on both sides of this case shows that no precaution whatever was taken by those in charge of the work, either by bracing the walls of the trench or furnishing any material with which either the plaintiff or Hartt could have braced them or prevented them from caving. It clearly appears that defendant's agents gave the workmen no warning, and that they had no knowledge of the danger, or the necessity of protecting the walls from caving. In such cases the rule is that a duty rests upon the...
To continue reading
Request your trial