Dimetre v. Red Wing Sewer Pipe Co.

Taylor, 0. Andrew Naum, an Albanian 18 years of age, while at work for defendant in its clay pit, was buried beneath a mass of clay and earth which fell from tbe bank or wall of tbe pit, and sustained injuries which resulted in bis death. Plaintiff as administrator of bis estate brought this action for damages and recovered a verdict. Defendant made tbe usual alternative motion for judgment notwithstanding tbe verdict or for a new trial and appealed from tbe order denying tbe motion. [134] Defendant contends that tbe facts bring tbe case witbin tbe rule established in tbe so-called “gravel pit” cases, and that plaintiff cannot recover, for tbe reason that Naum was chargeable with contributory negligence and bad assumed tbe risks. Plaintiff contends that tbe instant case does not come witbin tbe rule applied in tbe “gravel pit” cases, for tbe reason that the bank in question was composed mainly of bard, adhesive and tenacious clay, not likely to give way or fall, and for tbe further reason that defendant’s foreman with full knowledge of tbe attending conditions bad assured Naum that it was safe to work at tbe foot of tbe bank and ordered him to do so. Tbe witnesses do not agree as to tbe height of tbe bank or wall of .the pit at tbe place of tbe accident. Plaintiff’s witnesses estimate it as about 15 feet; defendant’s witnesses as at least 20 feet. From tbe bottom to a height of about seven feet, it consisted of “pipe clay” and was nearly perpendicular. Above this clay was a four or five inch layer of what is designated as “iron rock.” Above tbe “iron rock” was a layer of sand, or sandy material, which sloped back considerably and was estimated by plaintiff’s witnesses as between two and four feet in thickness. Above tbe sandy layer were about six feet of “brick clay” and common soil, tbe face of which was nearly perpendicular and projected two or three feet beyond tbe upper surface of tbe sandy layer. While tbe testimony discloses some common soil in this topmost layer, tbe quantity was evidently small, as tbe witnesses on both sides continually refer to this layer as “brick clay.” During tbe noon hour on tbe day of tbe accident, tbe crew, of which Naum was a member, passed over tbe top and near tbe edge of tbe bank on their way to and from dinner, and observed a crack along tbe top four or five feet back from tbe edge and several feet in length. They made no examination of this crack and whether Naum saw it does not appear, except by inference from tbe fact that be passed by with tbe other members of tbe crew. They discussed tbe danger among themselves and then informed tbe foreman of tbe crack and that it was dangerous to work under that bank. Tbe foreman went to tbe top of tbe bank and after making an examination told tbe crew that there was no danger and to proceed with their work. They did so. Late in tbe afternoon tbe overhanging [135] bank fell and Naum was caugbt beneath it and killed. The falling mass came wholly from the upper portion of the bank. The layers of “iron rock” and of “pipe clay” remained in place, showing that the slide was not caused by the work in which the crew were engaged during the afternoon. Some sand had dropped or trickled down during the afternoon but apparently not in sufficient quantities to attract attention. The hard and adhesive character of the so-called “brick clay” is indicated by the fact that after it had fallen to the bottom of the pit it still remained in large, hard chunks, — some of them so large that it required two or three men to lift them from the unfortunate Naum. The embankments considered in the gravel-pit cases were composed of material likely to slide or fall in the absence of lateral support, and it was held that the workman is presumed to have “the knowledge which common observation forces on the most ordinary intellect,” and to have known the effect and operation of the law of gravitation, and that by working upon or at the foot of such an embankment he took the chance of being injured in case it should fall. Olson v. McMullen, 34 Minn. 94, 24 N. W. 318; Pederson v. City of Rushford, 41 Minn. 289, 42 N. W. 1063; Swanson v. Great Northern Ry. Co. 68 Minn. 184, 70 N. W. 978; Reiter v. Winona & St. Peter R. Co. 72 Minn. 225, 75 N. W. 219; Kletschka v. Minneapolis & St. Louis R. Co. 80 Minn. 238, 83 N. W. 133; O’Neil v. Great Northern Ry. Co. 101 Minn. 467, 112 N. W. 625. But where the embankment consists of material of such adhesiveness, or so placed or supported, that it may reasonably be expected to withstand the effect and operation of the law of gravitation, the rule does not apply. Hill v. Winston, 73 Minn. 80, 75 N. W. 1030; Lund v. E. S. Woodworth & Co. 75 Minn. 501, 78 N. W. 81; Kohout v. Newman, 96 Minn. 61, 104 N. W. 764; Wolf v. Great Northern Ry. Co. 72 Minn. 435, 75 N. W. 702. Where the master directs the servant to perform specific work at a specific place and assures him that he can do so in safety, and the servant, pursuant to such order and in reliance upon such assurance, proceeds to do the work and is injured, his conduct does not, ordinarily, amount either to contributory negligence or to a voluntary [136] assumption of tbe risks incident to tbe performance of tbe work. Tbe servant is usually justified in assuming that tbe knowledge, experience and judgment of tbe master are superior to bis own; and, even if tbe undertaking appear to bim to be hazardous, be may rely upon tbe assurances of tbe master, presumably based upon sucb superior knowledge, without being chargeable either with contributory negligence or with a voluntary assumption of tbe risks, unless tbe danger be so obvious and imminent and so apparent to tbe ordinary mind that it would be unreasonable to rely upon tbe master’s assurances of safety. Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573, 36 N. E. 572; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Consolidated Coal Co. v. Shepherd, 220 Ill. 123, 77 N. E. 133; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Hannibal & St. J. R. Co. 96 Mo. 207, 9 S. W. 589, 9 Am. St. 336; Monahan v. Kansas City Clay & Coal Co. 58 Mo. App. 68; Swearingen v. Consolidated Troup Mining Co. 212 Mo. 524, 111 S. W. 545; Brown v. Lennane, 155 Mich. 686, 118 S. W. 581, 30 L.R.A.(N.S.) 453; McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L.R.A. 542; Central Coal & Iron Co. v. Thompson, 31 Ky. Law R. 276, 102 S. W. 272; Bush v. West Yellow Pine Co. 2 Ga. App. 295, 58 S. E. 529; Starr v. Kreuzberger, 129 Cal. 123, 61 Pac. 787, 79 Am. St. 92; Daley v. Schaaf, 28 Hun (N. Y.) 314; Chadwick v. Brewsher, 15 N. Y. Supp. 598; Baceelli v. New England Brick Co. 138 App. Div. 656, 122 N. Y. Supp. 856; Van Dusen Gas & Gasoline Engine Co. v. Schelies, 61 Oh. St. 298, 55 N. E. 998; Wurtenberger v. Metropolitan St. Ry. Co. 68 Kan. 642, 75 Pac. 1049; Lane Brothers & Co. v. Bott, 104 Va. 615, 52 S. E. 25; Allen v. Gilman, McNeil & Co. 127 Fed. 609; Haas v. Balch, 56 Fed. 984, 6 C. C. A. 201; Cook v. St. Paul, M. & M. Ry. Co. 34 Minn. 45, 24 N. W. 311; Nelson v. St. Paul Plow Works, 57 Minn. 43, 58 N. W. 868; Anderson v. Pitt Iron Mining Co. 103 Minn. 252, 114 N. W. 953; Nustrom v. Shenango Furnace Co. 105 Minn. 140, 117 N. W. 480; Manks v. Moore, 108 Minn. 284, 122 N. W. 5; Arnold v. Dauchy, 115 Minn. 28, 131 N. W. 625. [137] In tbe instant case tbe presence of tbe sandy layer in tbe embankment, tbe projection of tbe upper layer of brick clay beyond tbe sandy layer, and tbe existence of tbe crack along tbe top and four or five feet from tbe edge of tbe upper layer, pointed to danger and excited apprehension on tbe part of tbe crew. On tbe other band tbe material of which tbe bank was composed, except tbe sandy layer, was bard and adhesive, and bad remained in its then position for some time. Tbe work in which tbe crew were engaged did not undermine tbe bank or change its condition. According to tbe testimony of tbe superintendent it was tbe duty of tbe foreman to look out for dangerous places, tell tbe men when there was danger, and see that they did not get hurt. Defendant, in effect, undertook to ascertain when danger was impending and to give tbe men timely warning. When tbe men expressed their apprehensions to tbe foreman, be examined both tbe bank and tbe crack, and then told them that tbe bank was safe and to “go to work there.” They relied upon this assurance, and proceeded with tbe work of loading tbe pipe clay upon tbe “skip” for removal from tbe pit, and were so engaged at tbe time of tbe accident. Naum, a youth of little experience and unable to talk English, was naturally influenced to some extent by tbe conduct of tbe other members of tbe crew. Whether, in view of all tbe circumstances, tbe danger was so obvious and imminent and so apparent to tbe ordinary mind that Naum could not reasonably rely upon tbe assurances of safety given by tbe foreman, was a question for determination by tbe jury and not by tbe court. Such questions can be determined by tbe court only when the court can say that all reasonable minds would concur in tbe conclusion reached. We cannot say that this is such a case and tbe order appealed from is affirmed.