Pollard v. General Elevator Engineering Co., 51989
| Decision Date | 12 June 1967 |
| Docket Number | No. 2,No. 51989,51989,2 |
| Citation | 416 S.W.2d 90 |
| Parties | Earl Delbert POLLARD, Respondent, v. GENERAL ELEVATOR ENGINEERING COMPANY, a Corporation, Appellant |
| Court | Missouri Supreme Court |
Murphy & Roche and Morris B. Kessler, St. Louis, for respondent.
Robertson, DeVoto & Wieland, Leo C. DeVoto, Jr., St. Louis, for appellant.
LAURANCE M. HYDE, Special Commissioner.
Action for $150,000.00 damages for personal injuries; verdict for defendant but plaintiff's motion for new trial was sustained. Defendant has appealed from the order granting a new trial.
Plaintiff was injured while working at the foot of a clay wall or bank Estimated as from 10 to 15 feet high, which fell on him. His claim is that the collapse of the wall was caused by vibrations from the operation of defendant's drilling rig, which was drilling in limestone 44 feet from the clay wall. The court granted a new trial for error in giving Instruction 5, requested by defendant, because of the indefiniteness of its paragraph Second. This Instruction was as follows:
'Your verdict must be for defendant whether or not defendant was negligent if you believe:
'That plaintiff knew or, in the exercise of ordinary care, should have known it was dangerous to do so; and
'Second, plaintiff's conduct was negligent and
'Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.'
Defendant contends this instruction was proper but also claims plaintiff did not make a submissible case failing to prove any causal connection between the operation of the defendant's drill rig and the falling of the dirt bank which caused plaintiff's injuries. Therefore, we will review the evidence from the view most favorable to plaintiff. Plaintiff was an employee of Gamble Construction Company, the general contractor for constructing a new building and renovating an older building west of the new building, hereinafter called the 'renovated building'. Defendant was a subcontractor to install two hydraulic elevators for the new building. On the date of plaintiff's injury, there was an excavation for the new building east of the renovated building, 180 feet long west to east and 120 feet wide, north to south. The clay wall was at the west side of excavation along the east side of the renovated building which was supported there by concrete pillars eighteen to twenty feet apart and which were east of its basement wall. A new concrete wall for the new building was to be built adjoining the east side of the renovated building. Another old building which had been on the site of the new building had been razed and its old stone foundation east of the clay wall removed. The clay wall, originally between the foundations of the two old buildings, was left between the pillars supporting the renovated building. Before plaintiff was injured, it had been trimmed by a backhoe so that at the top it was in line with the east face of the renovated building. However, the bucket of the backhoe could not reach lower than four feet above the ground so the lower four feet bowed out east beyond the pillars supporting the renovated building. On the day of his injury, plaintiff and two other workmen were instructed by their foreman to trim down the lower part of the clay bank between the first two (south) pillars so as to make the face of the clay wall even with the western side of these pillars supporting the east side of the renovated building. After thus trimming the clay wall, they were told to bell in (undercut) the wall, cutting up two feet and cutting in about one foot. The west side of this clay wall was up against the east face of the concrete wall of the renovated building's basement (which did not come as far east as the pillars supporting its east side) so that the clay wall remaining was under the east side of the renovated building. It was intended that the clay should remain there between the basement walls of the renovated building and the new building.
Leonard Bengard, superintendent of the Gamble Construction Company, who had sixteen years' experience as a superintendent in the construction industry, testified that he had ordered the plaintiff and two other men to shape up the wall and to undercut it in order to pour concrete there for footings for the new wall to be constructed for the new building. In order to complete the footings after the dirt wall had been prepared, it would be necessary to build wooden forms to the east of the base of the new wall so as to hold the concrete. As superintendent, he had selected the method of preparing these forms for the new wall. He did not instruct the men to put any lateral shoring on the face of the wall because he thought it would be safe without lateral shoring. Bengard could have ordered the wall braced with lateral shoring, but it would have taken longer and would have cost more. In order to support the overhang after the wall had been trimmed back even with the west side of the pillars, the men prepared pockets by digging into the base of the wall and inserting a two by ten board at the top of the pocket, which was equal in height to the proposed undercut, and a two by ten board at the bottom of the pocket. Between these boards they placed a four by four as a brace. About five to seven such pockets were cut into the bank at its base along the 20-foot length between pillars before the actual undercutting was started. This shoring in the undercut part of the wall was the only shoring done, no lateral shoring being used.
Superintendent Bengard stated that as part of his duties it was necessary for him to notify the various subcontractors when they were needed and that he had called the defendant to send its men to the job site to start the drilling work. He had instructed defendant's employees, when they arrived with the drill rig about a week before the accident, where to drill and had decided to drill the westernmost hole first as the plans called for work on the job to progress eastwardly from the old building towards Jefferson Avenue. The hole was to be dug according to the plans 44 feet east of the dirt bank in question, it was to be 18 inches in diameter. The drill being used by defendant's employees was of a concussion type with a bit 18 inches in diameter. Its total weight was about 13,000 pounds. The drill bit, together with its stem, which was attached to a cable suspended from a boom, weighed approximately 1500 to 2000 pounds. The drill was operated by a gasoline engine which raised and lowered the drill bit at the rate of approximately 60 strokes per minute. The length of the stroke was about one foot. According to the drill operator, by the morning of the accident, the hole had reached a depth of 25 to 32 feet, drilling into limestone. The drill rig was operating on the morning of the accident when Superintendent Bengard sent the plaintiff and his two fellow workers to the southwest corner of the excavation in order to prepare the dirt wall for the footings. He did not at any time, before the accident occurred, ask the men from General Elevator Engineering Company to stop their drilling, although as superintendent and boss on the job he could have done so.
It took the men approximately 1 1/2 to 2 hours to trim the wall back and make the undercut. After they had finished belling in the dirt bank, the three men were cleaning up the loose dirt in front of the bank and while so doing plaintiff heard the boom (drill bit) go down for the first time, not having previously noticed it, felt vibrations and then heard one of the other men call out 'Here comes the wall.' As plaintiff was attempting to escape, he saw that dirt was coming out at the north end of the dirt bank under which he was working. Plaintiff was trapped by the falling dirt and buried up to his shoulders. The portion of the dirt wall which fell came out from the top of the wall in the upper right-hand section and was variously estimated as from five feet to one-half the total length of the upper portion of the dirt bank between the two pillars where plaintiff was working. The balance of the undercut wall did not collapse.
Defendant's expert witness Edward Bilhorn inspected the place after the concrete wall of the new building was completed but could see the type of soil between the walls of the two buildings. He stated that in digging in clay one cannot dig indefinitely and expect a bank of the...
To continue reading
Request your trial
-
Stewart v. City of Marshfield
...297, 300.' Johnson v. West, Mo., 416 S.W.2d 162, 166(5); Robben v. Peters, Mo.App., 427 S.W.2d 753, 758. See Pollard v. General Elevator Engineering Co., Mo., 416 S.W.2d 90, 96(6); Brown v. St. Louis Public Service Co., Mo. (banc), 421 S.W.2d 255, 260 (concurring Being satisfied that instan......
-
Stahlheber v. American Cyanamid Co.
...situation presented in Endermuehle v. Smith, Mo.Sup., 372 S.W.2d 464, and Heimos v. Bruce, Mo.Sup., 393 S.W.2d 477. Pollard v. General Elevator Co., Mo.Sup., 416 S.W.2d 90, was a case in which the trial court had granted a new trial on the basis of such an instruction. The court in that cas......
-
Brittain v. Clark
...accommodations in appeal cases involving jury instructions. Johnson v. West, supra, 416 S.W.2d at 166; Pollard v. General Elevator Engineering Company, Mo., 416 S.W.2d 90, 95--96(6); Stewart v. City of Marshfield, Mo.App., 431 S.W.2d 819, 825(5, Re: Instruction No. 3 Hopefully, plaintiff's ......
-
Robben v. Peters
... ... Mobile & O.R. Co., Mo.App., 33 S.W.2d 1009, 1010(3). Although ... West, Mo., 416 S.W.2d 162, 166(5); Pollard v. General ... Elevator Engineering Company, ... ...