Allen v. Logan City

Merritt, C. J.: This is an action wherein respondent sued in the court below, to recover damages for an injury which he sustained while working at undermining a gravel bank, which fell upon him, and caused the injury complained of. The jury rendered a verdict in favor of respondent for $2,200. A motion for a new trial was made and denied in the court below. From the judgment and order denying a new trial this appeal is taken. The facts, as disclosed by the record, show that on the 28th day of December, 1891, — the date of the injury, — appellant, Logan City, a municipal corporation, was engaged in undermining and throwing down a bank of earth known as the “Temple Hill Gravel Bank,” and hauling material therefrom, and using it in the improvement of the streets of Logan City. The bank extended along a distance in length of about 40 rods, with a perpendicular height of about 6-J feet. The formation consisted of about a foot or 18 inches of soil and gravel, underneath which was 4£ or — 284 — 5 feet of cement, and still -underneath, the cement was a seam of loose gravel, which was easily removed. ' The weather was very cold, and the frost had penetrated the surface a distance of- about 16 inches. The usual method of undermining the bank by the workmen employed upon it was to use what was called a “pike pole,” — an instrument with' a handle about five or six feet long, containing a steel point at the end, which was thrust into the seam of gravel underneath; and thereby the workmen would cause the bank to be so undermined that in some cases it would fall of its own weight, and at other times giant powder was used in throwing it down.' Eespondent, on previous occasions, had worked at the same employment in which he was engaged on the day of the injury, and had caused the bank to fall by undermining the same. He also knew of the method by which the bank had been worked and thrown down on previous occasions. On the day of the injury, without any objection on his part, and because he was a careful man, he was set to work by the road supervisor, Eliason, for the purpose of working his poll tax. He was informed that the work was of a very dangerous character; that he ought to be careful, so that the bank when undermined would not fall upon him. He was also told that the safest manner in which he could perform the work was to take this pike pole, and use it in front of him, and dig out the loose gravel underneath the cement, moving backward while so doing, keeping his body adjacent to the bank not undermined. He followed the directions given him, and began to work digging out the gravel underneath and back from the face of the bank, a distance of 4 or 5 feet, moving backward as directed; pursuing his work until he had undermined in that manner about 35 feet easterly from the point where he began. About 5 or 10 minutes before the accident, a Mr. McCullough, whom the road supervisor — 285 — had instructed to look after the men, warned respondent the .bank would be likely to fall, and to be very careful. Mr. McCullough also stated to him that he would stand by him, and watch the bank, so that when it gave evidence of falling he would warn him. Mr. McCullough saw the bank was about to fall, and immediately gave warning to respondent, who began to run away, when the bank split ofE about 10 feet easterly from where it had been undermined, and opposite to the point where respondent was working. The falling of' that portion of the bank not undermined struck the respondent, and partially buried him, and injured him. The breaking of the bank beyond the point where undermined, and by which respondent was working, was caused by its frozen condition, and probably because of cracks and fissures formed in the earth, caused by the use of giant powder on previous occasions. McCullough and one Crockett knew that the hank opposite where respondent was working contained cracks on the morning prior to the time respondent went to work. Crockett, however, before respondent commenced to work, went upon the top of the bank, and, with a crowbar, pried ofi all the ragged edges and pieces that could be thrown down by the use of his bar, and left the bank in a safe condition with which to work, unless the same was undermined. The evidence does not show that BliajSon knew of any cracks that were upon the surface of the bank. The respondent testified that he did not know of any cracks upon the surface opposite to where he was working, nor did he state that he would not have worked there, had he known of such cracks. On previous occasions, however, respondent had worked at the same employment, and knew that on other occasions powder had been used to throw down the bank, and that it had force and power sufficient for that purpose; and, upon a previous occasion when respondent was at work, the bank caved — 286 — while he was undermining it, but he succeeded in getting away in safety. The only purpose which respondent had in undermining the bank was to cause it to fall. His labor in undermining it was the occasion of the fall. The evidence also shows that respondent was repeatedly warned that the work was dangerous, and to be careful while he undermined the bank, so as to avoid an injury to himself when it would fall. At the conclusion of the testimony for the respondent in the court below, appellant rested its case, and moved the court for a nonsuit on several grounds, among which were: First, that the evidence was insufficient to show any negligence on the part of appellant; second, that the evidence established the fact that respondent, in entering upon the contract of employment, assumed the risks and dangers incident to it; third, that whatever injury respondent suffered was brought upon himself by his own want of care and diligence; and, fourth, that if any negligence was shown, which caused the injury, the same was occasioned by a fellow servant of respondent. The court overruled appellant’s motion for a nonsuit, to which appellant took an exception, and assigns error to this court. , In discussing the case under consideration, we deem it necessary to consider but two points: First, does the evidence show any negligence whatever upon the part of appellant which would entitle respondent to recover? and, second, if any negligence were shown by the evidence, was it the negligence of a fellow servant? These points will be considered in their order. 1. It will be seen that the evidence clearly established the fact that respondent was voluntarily working under a gravel bank, undermining the same for the purpose of causing it to fall; that he was warned of the dangerous position in which he had placed himself, and repeatedly warned to be careful, in order to prevent an injury. He — 287 — •knew of the dangerous employment in which he had voluntarily engaged himself, and knew the manner in which the work was being carried on, and had actually been employed, carrying on the same work, upon previous ■occasions. He was engaged in a business, the accomplishment of which was, in its nature, extremely hazardous. The very purpose for which the bank was being undermined was to cause it to fall, so that the material might be used in improving the streets of the city. Without ■caving the bank, and causing it to fall) nothing of profit ■could be accomplished. The danger was as open and ■obvious to the servant as it was to the master. Respondent was a careful workman, and there is nothing in the -evidence to show that he was incompetent, or did not understand the hazards incident to the work. He was ■familiar with all the facts and circumstances surrounding the. employment, and is presumed to know that when he •caused the bank to be undermined it would fall. In fact, that was the purpose for which he was employed, and the very business in which he was engaged, and the risks and ■dangers of the employment were assumed by him. Besides, the fall of earth was an unusually large one, splitting off the bank beyond the point where it was undermined, and by which respondent was standing. This, as ■shown by the evidence, was not only unusual, but unforeseen and unexpected. It was a mere accident which was the cause of the injury, for which the appellant is not •liable. Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24; Bennett v. Iron Co. (Utah), 34 Pac. 61; District of Columbia v. McElligott, 117 U. S. 621, 6. Sup. Ct. 884; Railroad Co. v. Lempe, 11 Am. & Eng. R. Cas. 201; Anderson v. Winston, 31 Fed. 528; Songstad v. Railway Co. (Dak.), 41 N. W. 755; Griffin v. Railway Co. (Ind. Sup.), 24 N. E. 888; Walsh v. Railroad Co., 27 Minn. — 288 — 367, 8 N. W. 145; Southern Pac. Co. v. Seley, 14 Sup. Ct. 530. 2. It is equally clear that if any negligence was shown, which caused the injury, it was the negligence of a fellow servant. Eliason, the road supervisor, was the vice principal of appellant. He directed respondent where to work, and warned him that it was dangerous, and to be careful, so that he would not receive an injury while working at the bank. The record shows that the supervisor had left the point where the work was being done, and had gone upon the streets of the city, where the gravel was being distributed. He left McCullough and one Worley in charge, and directed the other men what to do, and warned them to be cautious, so that no injury should occur. McCullough and Crockett ’ were the only persons who knew of the existence of cracks on the surface of the bank. McCullough stated to respondent that, he would warn him when the bank gave evidence of falling. If McCullough permitted respondent to remain at the bank too long, and was not as vigilant as he should have been in warning respondent, such negligence would be attributable to him alone. McCullough had no power to discharge or employ the workmen. He was engaged at the bank, and in the same general department, and working at the same general character of work, with respondent] and Crockett was-working at the same place, and in the same manner. It is clear that McCullough and Crockett were fellow servants with respondent, and for their negligence, if any be shown, appellant is not liable. Coal Co. v. Johnson, 6 C. C. A. 148, 56 Fed. 810; Railroad Co. v. Baugh, 13 Sup. Ct. 914; Bennett v. Iron Co., supra. It is clear, in principal and upon authority, that the unfortunate accident which resulted in the injury of respondent was one of the ordinary risks which he assumed — 289 — when he entered upon his employment, and for which appellant cannot be held liable. In our opinion the non-suit should have been granted. The judgment and order appealed from are therefore reversed, and the cause remanded, with costs, and with directions to grant a new trial. Smith, J., concurs.