Scheibe v. Fruin-Colnon Contracting Co.

• Citation: 23 S.W.2d 44,324 Mo. 375
• Decision Date: 30 December 1929
• Docket Number: 28088
• Parties: Ernest Scheibe v. Fruin-Colnon Contracting Company, Appellant
• Court: United States State Supreme Court of Missouri

23 S.W.2d 44

324 Mo. 375

Ernest Scheibe v. Fruin-Colnon Contracting Company, Appellant

No. 28088

Supreme Court of Missouri

December 30, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Affirmed.

John T. Sluggett, Jr., and R. C. Brinkman for appellant.

(1) The appellant is not liable for failure to anticipate an accident which a reasonably prudent man, looking to the situation before the accident, would not have anticipated. Kern v Welz & Zernich, 136 N.Y.S. 412. (2) Appellant is not liable for injury to his servant from accident of such a character that a reasonable man would not ordinarily have anticipated, even though proper precautionary measures would have prevented it. Potter v. Richardson & Robbins Co., 99 A. 540; Yarbrough v. Lumber Co., 211 S.W. 713; Zasemowich v. Mfg. Co., 213 S.W. 799; Am Brewing Assn. v. Talbot, 141 Mo. 674.

Kelley Starke & Hassett for respondent.

(1) The instructions given at the request of defendant and the instructions given by the court of its own motion, fully and fairly presented to the jury defendant's theory of the case. Therefore, refusal of defendant's requested Instruction 15 was not error. Stricklen v. Printing Co., 249 Mo. 614; Rutledge v. Swinney, 261 Mo. 128; Seelig v. Railroad, 287 Mo. 343; City of Kennett v. Const. Co., 273 Mo. 297; Melican v. Const. Co., 278 S.W. 361. (2) The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Sec. 1276, R. S. 1919; Honea v. Railroad, 245 Mo. 644. (3) The Supreme Court or courts of appeals shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action. Sec. 1513, R. S. 1919; Honea v. Railroad, 245 Mo. 644.

OPINION

Gantt, J.

Damages for personal injuries. Plaintiff was working for defendant in a pier hole. While doing so, the west wall of the hole caved and injured him. Negligence is charged as follows:

(1) Failure to brace the wall; (2) ordering plaintiff in the hole when the earth was wet, loose and likely to cave; (3) failure to warn plaintiff of the danger; (4) assuring plaintiff it was a safe place to work; (5) failure to brace the dirt thrown to the surface in digging; (6) failure to exercise ordinary care in inspecting the walls of the hole.

Answer was a general denial. The fourth and fifth charges were withdrawn from the consideration of the jury. Judgment was for $ 12,500. Defendant appealed. The facts follow:

In the fall of 1925 the defendant was constructing a building at North Market and Glasgow Streets in St. Louis. The location is an old quarry filled with clay, to which had been added an occasional load of rocks, bricks, cinders and rubbish. Defendant's excavators dug fifty-two pier holes of different sizes and depths as footings for the foundation. In digging the hole in question they threw the dirt north, south and east to the surface and near the edge of the hole. Lumber about four feet high was near the west edge of the hole, which was seven feet square and eleven and one-half feet deep. Plaintiff's only duty was the planting of rod-iron matting in the bottom of the holes to reinforce the concrete. On October 6, 1925, he planted the matting in this hole. There was a heavy rain that night which softened the bottom of the hole. The following morning, and after a laborer had removed the slush and dirt from the hole, the plaintiff and a co-iron-worker descended and proceeded to remat the hole. While doing so the west wall caved and seriously injured plaintiff.

There was evidence tending to show the condition of the earth in the west wall of the hole was such that, by the exercise of ordinary care in inspecting, it could have been discovered that the wall might cave. There was evidence to the contrary. The superintendent of defendant testified it was his duty to inspect the holes and brace the walls, if necessary, to prevent injury to employees; that he inspected the walls on the morning of the 7th and before plaintiff entered the hole; that they were of a clay nature, except the west wall was partly cinder filled; that the walls seemed solid....