Kielty v. Buehler-Cooney Construction Co.
97 S.W. 998
Mo. Ct. App.
1906
Check Treatment
GOÓDE, J.

(after stating the facts). — The contention that a verdict for appellant should have been ordered is rested by counsel on these propositions, affirmed by them to be sound: First, respondent possessed more skill and had enjoyed a longer experience in putting in sewers than the foreman and, therefore, cannot- be justified in relying on the larger experience of the latter and his assurance that the bulkhead was all right and required no bracing, or in obeying the order to go to work, which accompanied the assurance; second, respondent’s own testimony shows he did not-rely on the foreman’s assurance ; third, there were no signs to indicate the bulkhead was likely to cave and the foreman showed no lack of care, either in failing to detect the need of bracing it, or in refusing to furnish respondent bracing timber, on the latter’s statement that the bulkhead did not look safe. We suppose counsel take for granted that the facts required to support these propositions are conclusively established by the evidence. Under recent decisions of the Supreme Court, the defense is untenable that respondent voluntarily assumed the risk of tunnelling through the unbraced bulkhead, if he continued to work while apprehending danger. In so far as appellant was negligent in omitting to furnish respondent a safe place to work, it must answer for the consequences to him if his own negligence did not contribute to the injuries received. [Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Wendler v. House Furnishing Co., 165 Mo. 527, 65 S. W. 737; Blundel v. Elevator Co., 189 Mo. 552, 88 S. W. 103.] If the earth of the bulkhead was so loose as to unduly endanger respondent while working in the trench, and appellant fell short of ordinary care in leaving it unbraced, respondent did not assume the risk of its falling on him; that being a risk not usually incident to the *64employment, which, according to the foregoing decisions is the only kind a servant assumes. Therefore appellant’s first proposition depends on whether or not, as a legal deduction from the facts, respondent was guilty of contributory negligence in continuing to work in the trench; assuming, for the present, that it was a dangerous place to work. This question leads to the inquiry of whether a man of ordinary prudence would have worked there after he had become alarmed as respondent had; but had received the assurance of the foreman that the place was safe, accompanied by an order to go to work. Obviously this is a question which cannot be answered as a matter of law; for the law raises no presumption about it. It is a question of fact or probability to be determined from common knowledge. The danger was not shown to1 be so apparent that a court can hold respondent should have ceased to work; nor does the evidence show who had the greater skill, he or the foreman. Both of them had had some experience in puttingin sewers. The state of respondent’s mind appears to have been about this: He was uneasy and asked for more planks to brace the bulkhead. The foreman who was at the top of the trench and right by the bulkhead, replied it was all right and commanded respondent to go ahead with his work. The inference is fair that this opinion influenced respondent’s mind; reassuring him regarding his safety and inducing him to resume work without insisting on more bracing. The foreman was his vice-principal and there is no contention to the contrary. Under these circumstances we cannot pronounce respondent guilty of contributory negligence. We hold the issue was for the jury’s determination. Opinions supporting this ruling and given on quite similar facts are: McGowan v. Railroad, 61 Mo. 528; Keeghan v. Kavanaugh, 62 Mo. 230; Cook v. Railroad, 63 Mo. 397, and Chicago, etc., Brick Co. v. Sobkowiack, 148 Ill. 573. We do not mean to hold that an employee can so far rely *65031 such an assurance and order as respondent swore lie received frosn the foreman, as to forego the use of his own sense and judgment. Our decision is that in the present case the evidence does not prove, the danger of the bank falling was so apparent to respondent, or that his mind was so convinced it would fall, as to enable us to say the assurance of safety had no material influence in inducing him to accept the situation. If respondent was thus influenced by what the foreman said, and the latter’s advice and order were negligently given, appellant must answer in damages unless respondent failed of due care. [Graham v. Newburg, etc., Co., 38 W. Va. 273.] The record refutes the proposition that respondent’s own testimony shows he did not rely on the foreman’s assurance. He swore he did rely on it. Counsel say it is improbable that a skillful and experienced man like respondent, would have trusted to such an assurance. No doubt the jury weighed that argument; at least it was their duty to do so.

The third proposition is that no evidence was advanced to show the foreman was negligent in giving the assurance of safety to respondent and ordering him to ' proceed with his work — none to show a crack or flaw in the embankment; and hence the foreman was. justified in saying there was no danger. This reasoning is fallacious. An experienced and cautious person might have perceived danger of the bank falling though no crack was visible. If the soil was wet, loose and crumbly, danger was to be apprehended; and perhaps other conditions of the soil would suffice to give warning. The foreman swore he had made no examination of the part of the bulkhead which fell; a statement in itself going to show carelessness, if his attention was called to the matter by respondent’s expression of anxiety. Indeed, when material for bracing was at hand and was requested by a workman at the bottom of the trench, it is hard *66to excuse the foreman for not having it handed into the trench. So simple and easy a precaution ought to have been taken if an employee expressed anxiety and a wish for securer bracing. We hold the question of the foreman’s negligence was one of fact.

It is said contributory negligence on the part of respondent was established because it was his duty to brace the bulkhead. This matter, too; was one of fact. The foreman admitted it was incumbent on him, if asked, to furnish bracing material; and further said he had supervised the putting in of bracing on the sides of the trench. Holloran swore all the bracing respondent and he did was under the immediate direction of the foreman, who ordered each plank put in place. To hold respondent is conclusively shown to have been guilty of negligence in failing to support the bulkhead, when his request for material to support it with was refused by the foreman, would be a harsh ruling.

We are cited to two decisions of the Supreme Court as supporting appellant’s demand for a nonsuit: Wojtylak v. Coal Co., 188 Mo. 260, and Knorp v. Wagner, 93 S. W. 961. In the first one, on facts somewhat similar to those before us, the Supreme Court did not nonsuit the plaintiff, but held his case was for the jury. The other was for injuries to the plaintiff, caused by an explosion of powder in a mine. The charge of powder had been put in a drill-hole a few days before, but had failed to explode; and plaintiff, when hurt, was engaged in drilling around the charge in order to extract it from the hole. He expressed a doubt about the safety of the operation to two vice-principals, or supervisors, and relied for recovery on alleged assurances from them that the operation was safe. The Supreme Court held that what one foreman said did not amount to an assurance of safety, and that the plaintiff failed to rely on the assurance of the other foreman, or even to obey his di*67rection; but exercised his own judgment and drilled parallel to the hole the powder was in, instead of at right angles to it as the foreman had ordered. This case presents no such features. .

The first instruction granted for respondent declared it was appellant’s duty to furnish respondent a reasonably safe place to work; and that appellant was liable if the bulkhead was not properly braced, and, in consequence, was dangerous to work about, and Cooney the foreman knew, or, by the exercise of ordinary care could have known, those facts and have caused the bulkhead to be put in a reasonably safe condition; provided respondent. was himself in the exercise of due care, and provided further that the bulkhead fell on him in consequence of not being properly braced. The statement that it was appellant’s duty to furnish a safe place, was too strong; but the remainder of the instruction shows clearly that the extent of the duty intended to be required of appellant was to use ordinary care to furnish a safe place. No point was made against the instrutcion because of the inaccuracy of the first clause. The second instruction for respondent declared it was appellant’s duty to exercise ordinary care to furnish respondent a reasonably safe place to work and then' instructed regarding one of the acts of negligence averred in the petition, namely: that if the foreman knew, or by due care could have known, the trench was not reasonably safe, and by ordinary care could have made it reasonably safe by bracing the bulkhead, and under these circumstances, negligently caused respondent to work in the trench, or negligently failed to have the bulkhead braced, and on account of such failure, respondent, while in the exercise of due care on his part, was injured by the embankment falling on him, the verdict should be in his favor. Those two instructions are objected to on the ground that under the evidence it was erroneous to declare in the positive language used, that appellant was charged with the duty of fur*68ni,siting' respondent a safe place to work. It is not denied that, as a general proposition, this duty is incumbent on an employer to the extent that he must use ordinary care in respect of the safety of the place where he sets employees to work. But counsel contend that, in the present case, it was incumbent on the diggers to keep the trenches safe by bracing them; that the duty was on them to make the place where they worked safe; and hence the instructions under review were erroneous. The evidence shows without dispute, bracing material was kept at the top of the trench to be handed to the diggers when requested for use in supporting the walls of the trenches. On the question of who was to determine the necessity for bracing at a given point, the conclusion is fair from the foreman’s testimony, that, if he was about, he would decide the matter. He admitted giving directions in regard to bracing, as well as other work. But the evidence shows without dispute, too, the diggers called for timbers when they thought it was neccessary to brace the walls. Hence it was respondent’s duty to call for planks when he thought, prudence required the bracing of any portion of a trench he was in, and appellant’s duty to furnish planks in response to his call. It was also the foreman’s duty, if he observed a place that needed bracing, to have this done even though the men in the trench had preferred no request; for, peradventure, the foreman might see a dangerous place which had escaped the attention of the workmen. It thus appears the responsibility of making the place where they worked safe, was not intrusted in undivided measure to the employees. The foreman had a duty and, indeed, a paramount one, in so far as he was advised, to see that the trenches were kept safe by supporting timbers. Now the first instruction goes no further than to tell the jury that if the foreman knew, or, by ordinary care, might have known the embankment under which respondent was working was dangerous in not being properly brae-*69eel, and by the exercise of the like care might have caused it to be put in a reasonably safe condition, he was so far negligent that appellant is answerable for the injuries to respondent if caused without the latter’s fault. We discern no reversible error in said instruction, nor that it relieved respondent from the consequences of his own negligence in failing to make the trench safe. The instruction submitted the question of the foreman’s negligence to the jury and held appellant responsible for the consequences thereof, if found to exist. The instructions granted appellant clearly declared that if the falling of the bank was due to the negligence of respondent in failing to brace it, or test its solidity, and not to appellant’s negligence, the verdict should be for the latter; submitting that defense in every phase appellant asked that it be. Indeed, the first instruction for appellant went further than the evidence warranted in permitting the jury to find, in effect, that the sole duty of bracing the trench was on respondent; a theory inconsistent with the testimony of the foreman regarding his duty. It follows from what we have already said that the second instruction granted for respondent was sound in allowing a. recovery on a finding that the foreman carelessly caused respondent to work in the trench when the foreman knew, or might have known, the bulkhead was in a dangerous state. At most the question on this ground of recovery would be whether respondent was at fault in resting on the foreman’s assurance, and the issue of contributory negligence was submitted to. the jury.

The damages assessed were moderate, if the testimony for the respondent regarding the extent of his injuries is true. His case impresses us as meritorious and the judgment will be affirmed.

All concur.