Showalter v. Fairbanks, Morse & Co.

60 N.W. 257, 88 Wis. 376, 1894 Wisc. LEXIS 40

• Court: Wisconsin Supreme Court
• Decided: October 2, 1894
• Status: Published

Opinion

WiNsnow, J.

The nonsuit was granted on the ground; that the plaintiff had assumed the risk. In order to fully understand this question a further statement of the fact» in evidence is necessary.

The proof showed that the plaintiff was a man thirty-seven years of age and of ordinary intelligence; that he-had been employed laying and calking pipe for waterworks-contractors, “ off and on,” for several years and in several cities; that when not engaged in this business he worked as a common laborer; that he had noticed trenches cave in a number of times in other places, and three times at Rice-Lake, the last time being about ten minutes before he was-hurt; that he knew trenches not braced were liable to cave in, from experience; that the soil where the trench caved in was a clay soil about eighteen inches in thickness, with sand and gravel beneath; and that the digging crew wras about two or three rods ahead of plaintiff and Simmons,, and a few minutes before the accident some sand fell from the side of the trench where the diggers were at work. When this happened the digging crew left the trench, and plaintiff and Simmons also got out because they were afraid it,would cave in. The superintendent, Elder, and a foreman were on the ground when the plaintiff got out of the ditch. The foreman said he would not be afraid to lie down in the ditch all night, and would do so for a' dollar and a half. Mr. Elder said: “ Boys, go back to the ditch, and lay up to where the shovelers are, about three or four lengths. The ditch is perfectly safe. Go back and go to work. I will go right down to the office, buy lumber, and have it braced and curbed up.” Upon this plaintiff and Simmons went back to work because, as plaintiff says: “ I took Mi\ Eider’s word. I thought he had more experience than I had, and I felt the bank was perfectly safe. I took Mr. Elder’s word.” After they had been at work about ten minutes the trench caved in, inflicting the injuries of which plaintiff complains.

Upon these facts we are clearly of opinion that the plaintiff must be held to have assumed the risk. He was of ordinary intelligence. He knew that trenches of this depth were liable to cave in. He knew that this very trench had just partially caved in at a distance of a few feet. He came out of the ditch because of that very fact. He knew all the facts which the superintendent knew, and had fully as much experience as the superintendent. No expert engineer could have given him any. additional information as to the probability of the ditch caving in. In fact, he was fully informed of the peril, and chose to continue his work. No principle is better established than that under such circumstances the risk is assumed. Naylor v. C. & N. W. R. Co. 53 Wis. 661; Johnson v. Ashland Water Co. 77 Wis. 51; Paule v. Florence Mining Co. 80 Wis. 350. But it is said that the assurance of safety given by the superintendent, and the command to return to work, relieve the plaintiff of the consequences of his assumption of the risk. This is not the case where the employee is of full age and capacity and knows the danger as fully as the superintendent. Toomey v. Eureka I. & S. Works, 89 Mich. 249; Linch v. Sagamore Mfg. Co. 143 Mass. 206; Kean v. Detroit C. & B. R. Mills, 66 Mich. 277; Bradshaw's Adm'r v. L. & N. R. Co. (Ky.) 21 S. W. Rep. 346. Plaintiff had the right to refuse to obey the order, and if he chose to obey he took the risk of which he had full knowledge.

It is further said that there was a promise to remove the danger, and that plaintiff was entitled to work for a reasonable length of time in reliance on that promise without being charged with assumption of risk. It is quite doubtful whether this principle applies to such a case. Its usual application is to machinery or tools which are found to be dangerousty defective. Gowen v. Harley, 56 Fed. Rep. 973. But, conceding its application to such a case as the present, the evidence of the plaintiff is that he relied on the superintendent’s assurance that the ditch was safe, in going back to work. He nowhere claims that he relied on the promise to brace up the ditch. There must be reliance on the promise to repair, in order to make such a promise of any avail as an excuse to the employee.

Furthermore, the natural meaning of the promise seems very clearly to be not a promise to brace the ditch where the plaintiff was then working, but that, if plaintiff would lay the pipe up to where the shovelers were, the ditch should thereafter be bi’aced. The superintendent said he would buy lumber and brace the trench. Plainly, this would take considerable time, while the plaintiff’s work was transitory simply; and we do not see how such a promise could be reasonably construed to refer to that part of the trench where plaintiff was then at work, and which he would, in the natural course of his work, leave before lumber could be bought and prepared for bracing.

Errors are alleged in the rejection of evidence. As these alleged errors do not affect the question of the plaintiff’s assumption of the risk, we shall not discuss them.

By the Court.— Judgment affirmed.