Southern Minerals Co. v. Barrett

• Decision Date: 11 May 1967
• Docket Number: 6 Div. 19
• Parties: SOUTHERN MINERALS COMPANY, Inc. v. Eugene T. BARRETT.
• Court: Alabama Supreme Court

Page 87

199 So.2d 87

281 Ala. 76

SOUTHERN MINERALS COMPANY, Inc. v. Eugene T. BARRETT.

6 Div. 19.

Supreme Court of Alabama.

May 11, 1967.

Spain, Gillon & Young, John P. Ansley and Ollie L. Blan, Jr., Birmingham, for appellant.

Higgins, Windham, Perdue & Johnson, Birmingham, for appellee.

PER CURIAM.

Appeal by defendant from a judgment rendered on a jury verdict in favor of plaintiff in a suit to recover damages for personal injuries. Defendant's motion for a new trial was overruled.

The case went to the jury on two counts. Count 1 avers, in substance, that plaintiff, when injured, was employed by one McGinnis, a subcontractor of the defendant; that McGinnis had agreed with defendant to furnish the labor necessary to construct certain manholes for a sewer line being laid by defendant in Tarrant City, Alabama, at or near the intersection of Ford Avenue with National Street; that, in connection with said work, defendant 'had excavated, or caused to be excavated, all or substantially all of the area embraced within said intersection to a depth of, to-wit, 12 feet; that plaintiff was employed by McGinnis as a brick mason's helper in constructing the manholes for said sewer line at said place; that plaintiff, while performing his duties as such brick mason's helper for McGinnis in constructing a manhole for said sewer line in said excavation in said intersection, 'one of the walls or sides of said excavation gave way or caved in, and as a proximate consequence thereof plaintiff was injured and damaged as follows:' (Catalogue of injuries and damages); and that 'all of his said injuries and damages were caused as a proximate result of the negligence of the defendant in negligently failing to provide supports or other devices to maintain the walls or sides of said excavation in place and to prevent the same from giving way or caving in at said time and place.'

Count 2 is substantially the same as count 1 down to the last clause as stated above. In place of that clause, count 2 avers that 'it was one of the duties of the defendant to furnish to the said Burney C. McGinnis and his employees, including plaintiff, a reasonably safe place in which to perform the duties that plaintiff was performing as such brick mason's helper; * * * that when said excavation gave way or caved in plaintiff was caught between the sides of said excavation, and as a proximate consequence thereof plaintiff was injured and damaged as complained of and set out in said Count 1'; and that 'all of his said injuries and damages were caused as a proximate result of the negligence of the defendant in negligently failing to provide a reasonably safe place for the said Burney C. McGinnis and his employees, including plaintiff, to perform the work of constructing said manhole at the time and place aforesaid.'

Defendant's demurrer to the complaint, and each count separately, was overruled. There was a plea in short by consent.

The defendant requested the affirmative charge with hypothesis as to each count separately. These were refused and both counts were submitted to the jury. There was a general verdict in favor of plaintiff.

The substance of the evidence on the issues presented, considered in the light most favorable to plaintiff-appellee (see: South Highlands Infirmary v. Camp, 279 Ala. 1, 4, 180 So.2d 904), may be stated as follows: The defendant, Southern Minerals Company, was the primary contractor engaged in constructing a sewer in Tarrant City, Alabama. In connection with this work, defendant entered into an oral agreement with McGinnis to build manholes at specified points along the sewer line. Plaintiff was an employee of McGinnis. On the evening before plaintiff was injured, McGinnis received a telephone call from defendant's representative and was told that defendant was ready for one of the manholes to be built the following day. McGinnis, with plaintiff, went out to the job the following morning.

The ditch where the manhole was to be built was excavated by defendant and was about 30 feet wide at the top and 12 to 14 feet deep, with the sides sloping down to the bottom. McGinnis' only responsibility was to build manholes at places in the ditch designated by defendant.

McGinnis and plaintiff, before getting in the ditch, walked around the sides and stamped on the edge of the pavement to see if there were any loose materials that might cause the banks of the ditch to collapse or in. Plaintiff testified that the ditch appeared safe to him. Approximately ten minutes after plaintiff got in the ditch, the North side caved in causing dirt, rock and concrete from near the top of the ditch to slide down into the ditch, pinning plaintiff's legs against pipe in the ditch and injuring him.

Just before plaintiff got in the ditch, and while he was in it, defendant's backhoe (ditchdigger) machine, weighing about 50 tons, was being operated within 50 to 75 feet of the manhole construction site. The operation of the machine caused the ground to vibrate. Both plaintiff and McGinnis testified that defendant's dump trucks, 'ton and a half trucks holding maybe six cubic yards of dirt,' were hauling dirt away from the backhoe and running within 3 to 4 feet of the side of the ditch.

Both men also testified that dynamite was being set off in the area that morning. McGinnis testified that blasting was done shortly before the cave in, that the blasting 'vibrated the ground' and 'picked the (backhoe) machine up about two feet' and dropped it. On the other hand, defendant introduced evidence that no dynamite was exploded that morning, that no trucks were driven near the side of the ditch where plaintiff was working, that the backhoe machine was operating farther up the ditch, and that the ditch was sloped to a sufficient degree to render it safe for men to work there.

There is no evidence of the providing of 'supports or other devices to maintain the walls or sides of said excavation in place and to prevent the same from giving way or caving in.'

Defendant's president testified, on cross-examination, that he would not consider it safe to drive a truck within 2 feet of the side of a ditch such as this, nor to set off dynamite charges of such magnitude as to lift the backhoe machine off the ground.

Another of defendant's witnesses, a contractor also engaged in pipe line work, testified on cross-examination that, in his opinion, if dynamiting raised the backhoe machine a foot or a foot and a half off the ground, it was possible the dynamiting would affect the ditch.

Prior to trial, interrogatories were propounded to the defendant and answered by its president. These were introduced in evidence. In answer to a question as to what was done 'to prevent the walls or sides of said excavation from giving way or caving in at said place,' he stated: 'As a safety measure, the ditch was excavated so as to have a 1 1/2 to 1 slope or better.'

Another question and answer were as follows:

'Q. Following said rains state what, if any, means were employed by you to prevent the walls or sides of said excavation from caving or falling in. Describe each act and thing done by you to that end and state when you did each of the same.

'A. The walls were sloped to 1 1/2 to 1 slope or better as described in answer No. 24.'

When this witness was questioned at the trial concerning his answers to the above questions, the following occurred:

'Q. Then what you swore in answers about being a 1 to 1 1/2--1 1/2 to 1 slope is incorrect, isn't it?

'A. According to those figures; yes, sir.

'Q. I am talking about according to the right figures, if those figures are not right, I want you to tell the Jury they are not right.

'A. No, sir, I would say that is not the 1 to 1 1/2 slope.

'Q. You would say it was not a 1 to 1 1/2 slope?

'A. Yes, sir.

'Q. And ya'll were supposed to put a 1 1/2 to 1 slope to be on the safe side, weren't you, that is what you were trying to do?

'A. We weren't supposed to; no, sir.

'Q. I say it is what you said you were doing for safety measures?

'A. Sure.'

Another witness for defendant, the sewer inspector for Jefferson County at the time of the accident, testified on cross-examination that the driving of heavy trucks or dynamiting in the vicinity of a ditch of this type would have a tendency to cause the bank to cave in.

Several of the assignments charge error in refusing to give defendant's requested affirmative charges with hypothesis as to the complaint and each count separately. In support of these, it is argued that defendant owed no duty to plaintiff because the premises were not inherently dangerous; that defendant had no duty to protect employees of a sub-contractor from open and obvious dangers on the premises; that plaintiff did not carry his burden of proving the ditch to be unsafe; that no evidence was introduced casting a duty on defendant to erect supports or walls on the sides of the ditch; and that there was an assumption of risk and contributory negligence on the part of plaintiff.

The defendant, as a general contractor, was in control of and occupied the premises, so far as concerns any question here presented, the same as if it were the owner. There is no dispute concerning plaintiff's status as an invitee of defendant. The duty owed by defendant, as invitor, to plaintiff, as its invitee, has been stated in a number of this court's decisions. See: Kittrell v. Alabama Power Co., 258 Ala. 381, 383, 63 So.2d 363; First National Bank of Mobile v. Ambrose, 270 Ala. 371, 373--374, 119 So.2d 18; Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388; Prudential Ins. Co. of America v. Zeidler, 233 Ala. 328, 331, 171 So. 634; Alabama Power Co. v. McIntosh, 219 Ala. 546, 550, 122 So. 677; Tennessee Coal Iron & R. Co. v. Burgess, 158 Ala. 519, 524--525, 47 So. 1029; Alabama Steel and Wire Co. v. Clements, 146 Ala. 259, 40 So. 971; Geis v. Tennessee Coal, Iron and Railroad Company, 143 Ala. 299, 302--303, 39 So. 301; Sloss Iron &...