Webb v. Dinnie Brothers
| Decision Date | 18 December 1911 |
| Citation | 134 N.W. 41,22 N.D. 377 |
| Parties | WEBB v. DINNIE BROTHERS |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Templeton, J.
Action by Henry J. Webb against Dinnie Brothers, a corporation. From a judgment for plaintiff, defendant appeals.
Affirmed.
G. A Bangs and Murphy & Duggan, for appellant.
Skulason & Burtness, for respondent.
Upon the 4th of June, 1909, plaintiff was a common laborer working for the defendant, a corporation engaged in contracting and building. James Dinnie was general manager, and one Morrow foreman, for said defendant. After dinner of said day, Dinnie and Morrow took a cement crew to some lots owned by the Elks in Grand Forks, North Dakota, prepared to erect the concrete walls of a basement thereon. The only work done upon such lots was the excavating for the basement and the digging of a trench around the sides thereof for the foundations of the basement walls. The two jobs of digging had been done in separate contracts and at different times, and by different contractors than defendant. The basement proper had been dug first, some time in the fore part of April, and was something over 10 feet deep, and the walls had not been supported in any manner to prevent a cave in. During the time the wall stood unprotected, a great deal of rain had fallen, but the basement had been kept reasonably dry by pumping the water out. Defendant was to do the concrete work upon the walls only, and such walls were to be some 18 inches thick in the main, but the bottom thereof was in the nature of a subwall or foundation, some 4 feet thick and some 18 inches in height. To receive this base, a trench was dug around the edge of the basement proper, 4 feet wide and 18 inches deep. Fluid concrete would be poured into this trench until it was full, and thereafter brick walls would be built. This trench was not quite completed when Dinnie and his men arrived, but enough of it was ready so they could commence with the concrete work. Dinnie went with a buggy to a different part of the city, where plaintiff was engaged in tearing up board sidewalks, and took him to the Elks' job, where he was put to work laying planks on the edge of the trench above mentioned, so wheel-barrows with fluid concrete could pass along and fill the trench. In laying the plankway, plaintiff encountered some loose dirt thrown out of the trenches. This dirt he proceeded to shovel further into the basement, so his planks might lie upon the solid dirt of the basement floor. While so engaged, he stood in the trench with his back to the wall, and while so standing about half a load of dirt slid out of the wall over his head, and fell around and upon him, but did him no injury. He looked at the source of the slide, and saw Dinnie upon the surface of the ground, also watching the slide. He asked Dinnie if the wall was safe, and Dinnie replied: Plaintiff resumed work, and was injured some ten minutes later by a large slide of dirt from the same place. He sued, and recovered a verdict of $ 5,265. It is stipulated that this verdict is not excessive, and defendant who appeals, does not want a new trial. The only error complained of is the refusal of the trial court to direct a verdict in favor of the defendant at the close of the testimony, or to grant judgment in their favor, notwithstanding the verdict. Defendant claims that no actionable negligence has been shown against it, and if there has plaintiff was guilty of contributory negligence, and that he assumed the risk of the work in which he was engaged.
1. Upon the first proposition, it will be remembered that Dinnie was the general manager of the corporation. He was the managing officer, and acted for the defendant in furnishing a place for plaintiff to work. He was thus a vice principal, and not...
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