Plaintiff’s action is to recover damages for the death of her husband, which she charges was occasioned by the negligence of defendant. She prevailed in the trial court.
Defendant was engaged in putting in a sewer in Kansas City, and had several men in his employ, among others the deceased. The ditch for the sewer was dug fourteen feet deep and was exactly two feet and three inches wide. It was dug by a machine, which accounts for its uniform width. It was being dug from south to north; that is, the machine, which
Two men were at the bottom engaged in doing the bracing, boards and cross-pieces being handed down to them for that purpose. The evidence does not make certain the length of space between the machine and the first brace, that is to say, the length of excavation unbraced; nor is it ■ made clear how much of the unbraced space was at the bottom of the ditch, and how much of it was on the slope. Plaintiff states that there was evidence tending to show that the unbraced portion was between ten and fourteen feet at the bottom of the ditch. Defendant says the evidence tended to show only five or six feet at that place.
Be that as it may, defendant concluded to put a third man in the ditch to assist in bracing, and he went to a nearby place where he had other men employed, at other sewer work, and' asked the foreman there to send over a man for that purpose. The foreman ,sent the deceased. He came and immediately descended to the bottom of the ditch and begun work by undertaking to put in a cross-piece between the upright boards. He found it too long and threw it up to the surface, saying r
Three grounds of negligence are charged in the petition: first, that defendant failed to warn deceased of the dangerous condition of the earth and sides of the trench; second, in furnishing deceased with cross-pieces which were too long; and, third, in permitting the machine to dig the trench too great a distance (fourteen feet) ahead of the bracing. There was a fourth ground but it is included in those stated. We cannot bring ourselves to the conclusion that either of the first two grounds was supported by evidence.
As to the first, no reasonable man could have supposed it necessary to notify deceased as to the danger. He was shown to have been an old and experienced employee in sewer laying. He saw the depth of the trench
The second ground is even more untenable. The evidence shows the length of the cross-pieces had been measured and they were sawed accordingly. But by the sudden swelling inwardly of the sides of the trench, they, of course, became too long, and immediately upon notice of that fact, the man whose business it was, began to shorten them and in the meantime warned deceased to look out — to stand back.
The record leaves the third ground in a very uncertain state. As already said, the distance of unbraced trench is left indefinite. If there was a space of t welve or fourteen feet at the bottom of the trench, unbraced, it would seem to be clear that, ordinarily, it would justify submitting a question of negligence, either on the ground that the ditching was permitted to get too far ahead, or the bracing too far behind.
But we need not go into that. For we are bound to notice that the uncontradicted evidence of plaintiff’s own witnesses, is that the man who cut the cross-pieces warned deceased and saw him move back into a place of safety. We are not unmindful of plaintiff’s suggestion that there is no evidence that deceased heard him. But above we have set out the evidence on this head, and are bound to say he did hear him. He was only fourteen feet away, the machine was not running and presumably there was no noise to drown his voice. He hallooed out and deceased immediately responded .by stepping back within the protection of the last braces. To say that he did not hear the warning would be to abandon every reasonable probability and adopt the merest conjectural possibility.
We feel compelled to reverse the judgment.