See v. Chicago, B. & Q. R. Co.

• Decision Date: 07 February 1921
• Docket Number: No. 12232.,12232.
• Citation: 228 S.W. 518
• Court: Missouri Court of Appeals
• Parties: SEE v. CHICAGO, B. & Q. R. CO.

228 S.W. 518

SEE v. CHICAGO, B. & Q. R. CO.

No. 12232.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Schuyler County; W. M. Pettingill, Judge.

"Not to be officially published."

Action by Andrew See against the Chicago, Burlington & Quincy Railroad Company. From judgment for plaintiff, defendant appeals. Reversed.

J. G. Trimble, of St. Joseph, Campbell & Ellison, of Kirksville, and Walter Higbee, of Lancaster, for appellant.

Saxbury & Saxbury, of Queen City, and Fogle & Fogle of Lancaster, for respondent.

TRIMBLE, P. J.

This is an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages because of an injury resulting from the caving in of the side of a ditch in the roadbed of defendant where plaintiff was working at the time.

There was a verdict and judgment plaintiff's favor for $2,000, and defendant appealed.

A number of matters are complained of as constituting reversible error, only one of which we need to consider here, as, in our opinion, it is decisive of the case. The injury occurred February 8, 1915. Trial was had in October, 1915, and the appeal was submitted to this court at its October term, 1916, and assigned to one of the members of the court as then constituted. It was laid aside, however, to await the decision of another case hereinafter mentioned which would determine once for all the controlling question herein.

The negligence charged herein is that the ditch in which plaintiff was working "was not then and there a reasonably safe place for plaintiff and his coemployees to work, all of which the defendant knew, or by the exercise of ordinary care could and would have known," and that the dirt fell and injured him.

The answer admitted that plaintiff was engaged in interstate commerce as alleged, and then, after a general denial, set up assumption of risk.

The ditch was eight feet deep six feet wide and was across and under defendant's track. Plaintiff had helped dig the ditch. At the point where the dirt fell a place on the side of the ditch had been smoothed for a brace. At the time the dirt fell there was one set of timbers in the ditch and another place prepared to receive the timbers. A huge tile was to be pulled into and along the ditch by means of a rope and plaintiff, together with another man and defendant's foreman, were in the ditch, the plaintiff engaged in getting the rope untangled. Preparations were also being made to put in a set of timbers close to the point where the dirt fell, and this shoring was being done at the time. Plaintiff was an experienced workman, having been engaged therein for five or six years. The wall or side of the ditch was perpendicular, and, while there were no manifestations that the dirt was about to cave off, yet there was nothing to prevent plaintiff from seeing and knowing of the danger or likelihood of a cave-in if such existed. The dirt which fell from the side of the bank fell from the top to the bottom in a cup shape and came to a feather edge. There was evidence on plaintiff's side that at the time the dirt fell plaintiff had an adz in his hand and was engaged in shoring on that side at the moment the dirt fell.

It is manifest that the liability of dirt to cave off from the side of the...