Pippin v. Will F. Plummer Const. Co.

• Decision Date: 30 January 1915
• Docket Number: No. 1267.,1267.
• Citation: 187 Mo. App. 360,172 S.W. 1191
• Parties: PIPPIN v. WILL F. PLUMMER CONST. CO.
• Court: Missouri Court of Appeals

172 S.W. 1191

187 Mo. A. 360

PIPPIN v. WILL F. PLUMMER CONST. CO.

No. 1267.

Springfield Court of Appeals. Missouri.

January 30, 1915.

1. NEGLIGENCE (§ 134) — DEGREE — PROOF.

In a personal injury action, plaintiff, to recover, must make out a prima facie case on the specific charge of negligence averred in the petition.

2. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — DUTY OF MASTER.

A master is not an insurer of the servant's place of work, being required only to use ordinary care to make it safe.

3. MASTER AND SERVANT (§ 265) — INJURIES TO SERVANT — RECOVERY.

For an injured servant to recover, he must not only show the master's negligence, but that the negligence was the cause of the injury.

4. MASTER AND SERVANT (§ 265) — INJURIES TO SERVANT — RES IPSA LOQUITUR.

While negligence may be inferred from the facts in evidence, a ditch digger injured by a fall of rock he had thrown out cannot rely on the doctrine of res ipsa loquitur, where there was a specific allegation that the master negligently allowed undue accumulations of earth and rock to form too near the sides of the ditch.

5. MASTER AND SERVANT (§ 285) — PROVINCE OF COURT AND JURY.

It is not the province of the court or jury to speculate as to the cause of an accident, and the case should not be submitted to the jury where it was not shown whether the servant's injuries resulted from a cause for which the master was liable or one for which he was not.

6. NEGLIGENCE (§ 121) — BURDEN OF PROOF.

In a negligence action, plaintiff has the burden of proof.

7. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — ACTIONS — EVIDENCE.

In an action by a ditch digger injured by a fall of rock he had thrown out, evidence held insufficient to establish the master's negligence.

8. MASTER AND SERVANT (§ 185) — INJURIES TO SERVANT — FELLOW SERVANT.

A master engaged in excavating sewers provided competent top men to throw back the dirt and rocks cast out by those in the ditch. Plaintiff, who was excavating in a deep ditch, was injured when rocks and earth which he had thrown out rolled back into the ditch. Held that, as plaintiff's place of work was continually changing, and was reasonably safe to begin with, the master was not liable for, having provided a competent top man, plaintiff's injury, if the result of negligence, was a result of the negligence of his fellow servant, the top man.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by James Lee Pippin against the Will F. Plummer Construction Company. From an order overruling plaintiff's motion to set aside a nonsuit, he appeals. Affirmed.

F. T. Stockard and Williams & Galt, all of Springfield, for appellant. Barbour & McDavid, of Springfield, for respondent.

FARRINGTON, J.

This is an appeal by the plaintiff in a personal injury suit, after nonsuit in the trial court.

Plaintiff on January 2, 1913, was in the employ of the defendant as a digger engaged in the construction of a sewer ditch. It was his duty to dig and shovel dirt. He was injured while in the ditch by some dirt and a rock falling back into the excavation.

The petition alleged that plaintiff was so engaged, and that it was defendant's duty to furnish him a reasonably safe place in which to perform his work; that at the time of his injury he was at work in the bottom of the ditch, the top of which was much higher than his head; that, while using due diligence and care for his safety, the defendant —

"so carelessly and negligently conducted itself with reference to its duties as to the safety of this plaintiff as to allow the dirt and rocks thrown out of said ditch by this plaintiff to collect and fall back in said ditch and upon this plaintiff in such a manner and with such force as to maim, wound, and bruise this plaintiff and permanently injure him, by breaking his collar bone and otherwise injuring and bruising him; that defendant and its foreman knew, or, by the exercise of ordinary care, might have known, that said place in which plaintiff was working would be rendered dangerous by such accumulations of dirt and rock at the edge of the ditch, and could have made said place a reasonably safe place in which to work by the exercise of ordinary care on their part, by causing said dirt to be thrown back from the edge of the ditch, or by erecting barriers thereat, or by warning plaintiff that the material which he was throwing out of said ditch had so accumulated at the ege of the ditch that it was dangerous for him to continue to work therein, but they negligently and carelessly failed to do so."

Following this were the averments as to the extent of his injury and the damages sustained. The answer was a general denial, a plea of contributory negligence, and a plea of assumption of risk.

Defendant requested, and the court refused, a peremptory instruction at the close of plaintiff's evidence, but when the request was renewed at the close of all the evidence the instruction was given. Plaintiff thereupon took a nonsuit with leave to move to set the same aside, and the appeal is from the order refusing to set the judgment of nonsuit aside.

The evidence, considered in the light most favorable to plaintiff, is as follows: Plaintiff had worked in sewer ditches for defendant before, as well as top man. At the time of his alleged injury he was working in a section of the ditch about 8 or 10 feet long and 3 feet wide. He did not know how deep it was, but said he was 5 feet 10 inches in height, and that the bank looked to be 3 or 4 feet over his head. He dug down to grade, and was using a shovel with a handle about 5 feet in length to throw the dirt out, and put on all his strength to throw the dirt up on the bank. He didn't measure the depth of the ditch, and just guessed at its depth. "I dug in there and throwed the dirt on top, and it accumulated up there and fell back on my shoulder. I threw out a shovelful, and went to get another shovelful, and a whole lot of dirt and rock rolled back on me." He testified that the rock was perhaps three to five inches through — as big as his double first, as he put it. He stated that there was a way to keep the dirt from falling back on him; that it was the duty of the top man to keep the bank clean so the dirt wouldn't roll back on the man; that when he had worked as top man the foreman told him to keep the dirt 18 inches back from the hole, so it wouldn't go down on the man in the hole; that one top man is supposed to take care of three holes or sections; that he noticed a top man once or twice after he was down in the hole, but never noticed whether he was there when he got hurt; that in digging the ditch he would begin on top with pick and shovel and throw the dirt out on one side; that when a laborer first starts his hole he is supposed to throw the dirt back as far as he can, and that he did so — maybe 6 or 8 feet; that as he went deeper he couldn't throw it so far; that no dirt had fallen on him before this bunch fell on him; that he took up a shovelful and threw it out, and just as he went to get another a whole lot of dirt and a rock fell back on his shoulder; that he did not know whether it was what he had thrown out or not; that he had stooped down; that he didn't know where the top man was; that the dirt stayed all right until he threw up that shovelful; that he didn't know whether the top man had moved the dirt back along the ditch or not, as he was working and hadn't paid any attention to the top man; that he didn't call the top man to put any dirt back; that he didn't see it getting up close to the edge of the bank; that he worked so hard and fast he didn't have time to look. He testified that it was the duty of the top man to help get the big rocks out, but that he (the plaintiff) was below the place where the big rocks were when he took out this shovelful of dirt. He stated that at the time he was injured defendant did not have anything on top of the ground in the way of barriers or boards to keep the dirt from rolling back on him, and that, if boards of any kind had been set up, they would have kept the dirt from rolling back into the ditch. The injury occurred between 5 and 6 o'clock in the afternoon, and he quit work at half past 5 or 15 minutes to 6. He climbed out of the ditch and went home, and on the way his arm began hurting. He did not go to work the next day. Eight or nine days later he went to a doctor, saying he didn't go sooner because he had no money. His arm and neck were swollen, and he had treated himself with liniments and poultices. He testified in detail as to his treatments by the doctor, his pain, his loss of time and money, the permanency of his injury, and his impaired earning capacity. For the purpose of this appeal we assume that plaintiff's account of his condition is true; hence it is unnecessary to summarize the testimony of his physician. The only other witness for plaintiff was his stepdaughter, who merely testified that she attended plaintiff after he came home that night, and saw his...