Stenson v. Laclede Gas Co.

• Decision Date: 31 May 1977
• Docket Number: Nos. 37472,37473,s. 37472
• Citation: 553 S.W.2d 309
• Parties: David B. STENSON, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 309

553 S.W.2d 309

David B. STENSON, Plaintiff-Respondent, v. LACLEDE GAS COMPANY, Defendant-Appellant.

Nos. 37472, 37473.

Missouri Court of Appeals, St. Louis District, Division Three.

May 31, 1977.

Paul B. Hunker, Jr., Morris E. Stokes, St. Louis, for defendant-appellant.

Cox, Moffitt & Cox, Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.

KELLY, Presiding Judge.

These causes involve cross-appeals, one, an appeal by the defendant in the trial from an order of the trial court overruling the defendant's motion for a judgment for the defendant in accordance with its motion for directed verdict at the close of the plaintiff's case or, in the alternative, for a new trial, and the other, the plaintiff's appeal from the trial court's order directing a verdict for the defendant on the issue of punitive damages.

The parties on appeal shall be referred to as plaintiff and defendant, the positions they were in at the trial level.

The plaintiff's evidence was that in December, 1972, he and his brother, James, lived on Whispering Winds Road in a mobile home park in St. Charles County and plaintiff was employed by his brother in a mobile home repair business. On December 29, 1972, plaintiff was at his brother's home located approximately one block from where the occurrence which gives rise to this litigation took place. It had been snowing that day, and two or three inches of snow had accumulated on the ground. During the afternoon, at approximately 2:30 p. m., James Stenson was driving his 1971 Ford pick-up truck southwardly over Boschert Drive in St. Charles County with the plaintiff riding with him as a passenger. Boschert Drive is a two lane street and is paved with asphalt and chat. As he was proceeding southwardly at approximately 25 m. p. h. with his windshield wipers and defroster working, the pick-up truck came to a sudden stop. Plaintiff was thrown forward and struck his head against the windshield sustaining injuries to his neck and back. James Stenson was also thrown forward into the windshield and the steering wheel. The steering wheel was cracked in two places by the impact. Plaintiff and his brother alighted from the pick-up truck and observed that the right rear wheel of the truck was completely under the ground, "clear up to the body, bottom of the body setting on the ground." They observed some rock in the "hole" and after the truck was pulled out of the "hole," they observed that the "hole" was about three feet deep from the level of the road to the level of the rock.

Both brothers testified that they had previously seen employees of the defendant digging a hole in the road where the truck sank into the "hole." The excavation was about 6 feet by 8 feet and 4-5 feet deep. James Stenson testified that the men worked there for two days approximately one week prior to the occurrence, and he observed the words "Laclede Gas" written on the shirts of some of the men so engaged and that he also saw the Laclede name imprinted on the side of three trucks at the work site. He had passed the construction site many times and on one occasion observed that the workers had dug a hole about four or five feet deep to hook up to a gas main. He also observed red flags and stringers circling the construction site. The plaintiff testified that these men filled the hole when they had finished working there, but he did not see what it was they put in the hole although he did see that there was rock on top, and that the rock was level with the surrounding surface. James Stenson testified that he did not see any of defendant's personnel at the work site the week prior to the occurrence. During the week prior to the occurrence there were no barricades, flags or warning lights around the former construction site. The next time James Stenson observed any of defendant's employees on the site was the Monday following the occurrence at which time he observed them filling the hole into which his pick-up truck had sunk with rock.

At the close of plaintiff's case the defendant offered no evidence but filed a Motion for a Directed Verdict, together with a similar motion directed to the plaintiff's claim for punitive damages. The former was overruled and the latter sustained. The cause was submitted to the jury and a verdict was returned for the plaintiff for $10,000.00. Defendant filed a Motion for Judgment in Accordance with its Motion for A Directed Verdict, or, in the alternative, for a new trial. Plaintiff filed a motion for new trial on the issue of punitive damages. The trial court overruled both parties' motions and timely notices of appeal were filed by the plaintiff and the defendant. ¹

Defendant's appeal shall be considered and disposed of first. Defendant's initial point is that the plaintiff did not make a submissible case for the jury. The thrust of this contention hinges on whether, at the time of the occurrence, there was an "excavation" in the road. Plaintiff's petition alleged that the motor vehicle in which plaintiff was riding fell into an "excavation" made by the defendant and that the negligence and carelessness of the defendant was (a) that the said "excavation" was a dangerous condition created by the defendant, (b) that the location of said "excavation" exposed persons lawfully using the roadway to an unreasonable risk of harm of falling into the "excavation," and (c) that the defendant failed and omitted to use ordinary care to take precautions to place barricades, ropes, flags, lights or other warning devices at or near the "excavation."

The cause was submitted to the jury under Instruction No. 2, which is as follows:

"INSTRUCTION 2

Your verdict must be for the plaintiff if you believe:

First, defendant created an excavation located in a public street or close thereto, and Second, that such excavation was so located in a public street or so close thereto that persons using the street in the exercise of ordinary care were exposed to a danger of falling into the excavation, and

Third, defendant knew or should have known of such danger, and

Fourth, defendant failed to use ordinary care to either barricade it or warn of it, and

Fifth, as a direct result of such failure plaintiff was injured.

The term 'ordinary care,' as used in this instruction, means degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances. (MAI 22.02, modified, by plaintiff). " (Emphasis supplied)

Defendant's claim of error rests upon the definition of the word "excavation" as "a cavity formed by cutting, digging or scooping . . . an uncovered cutting in the earth."

Defendant, in its brief, admits that it did make an excavation in Boschert Drive in connection with its business of furnishing gas service to subscribers, but it contends that once the excavation was filled to the street surface it ceased being an excavation and any injuries plaintiff sustained were the result of the subsidence of the fill in what was formerly an excavation. Defendant bases its argument on the definition of "excavation" found in 23 C.J. at page 179 and in the case of Bituminous Casualty Corporation v. Walsh & Wells, 170 S.W.2d 117, 121 (Mo.App.1943). The definitions of the term "excavation" in these two sources is too narrow and technical to be controlling here.

The definition quoted from 23 C.J. at page 179 failed to include that portion of the definition which evidenced the technical nature in which it was used there, viz. "in distinction from a covered cutting or tunnel." We shall demonstrate hereafter that this technical definition of the term is peculiar to the engineering profession, and inappropriate to the facts in this case.

The Court in Bituminous Casualty Corporation v. Walsh & Wells, supra, distinguished the terms "excavation" and "tunnelling" in construing whether an exclusion from coverage under a contract of insurance barred the defendants from recovering from plaintiff on their counterclaim a sum they had paid to the owner of a building on property which was damaged when defendants were constructing a sewer under the building and the building was thereby damaged. The exclusion in the insurance policy precluded from coverage collapse of or structural injury to any building adjacent to premises where the insured's operations were carried on due to "excavation" below the natural surface of the ground. It was conceded that the tunnelling underneath the building was what caused the injury to the building which was the basis for the claim. In distinguishing the word "tunnel" from "excavation" the court, 170 S.W.2d l.c. 121(1) said:

" 'Excavation' is defined in 23 Corpus Juris 179, as an uncovered cutting in the earth, in distinction from a covered cutting or tunnel. This, we think, is the common ordinary meaning of the word. A tunnel is not ordinarily spoken of as an excavation. Nor is the operation of constructing a tunnel spoken of as excavating. But however this may be, it is certain that the word as used in the provision under review here does not exclude from coverage injuries to the buildings or structures due to tunneling under them."

This definition is not, however, the only definition of the term "excavation" and is not the more broad definition we believe is applicable to this case as we shall hereinafter observe.

Our research has led us to the following definitions of the word "excavation."

"1 a: the act or process of excavating b : the removal of superposed material (as earth or buildings) from the remains or structures of an age or civilization earlier than the present 2 : a cavity formed by cutting, digging or scooping 3 : an uncovered cutting in the earth distinguished from tunnel b : the material dug out in making a channel or cavity." Webster's Third New International Dictionary.

"1. Act or process of excavating.

2. A cavity formed by cutting, digging or scooping.

3. Engin. a. An uncovered cutting in the earth, in distinction from a covered cutting or...