Opinion
December 30, 1929.
1. NEGLIGENCE: Instruction: Anticipating Injury. Where plaintiff made a submissible case on the issue of failure to exercise ordinary care to inspect the walls of the pier hole in which he was required to work and which caved in upon him, it was not error to refuse an instruction asked by defendant telling the jury that "the defendant was not required to guard against a happening of occurrences which an ordinarily prudent person could not anticipate; therefore, if you find and believe that the plaintiff was injured in such a manner that such injuries could not have been reasonably anticipated by an ordinarily prudent person, defendant is not liable and your verdict must be for defendant."
2. NEGLIGENCE: Instruction: Anticipating Injury: Not an Issue. The court having given an instruction telling the jury that if they found that the condition of the earth in the hole walls, which caved in upon plaintiff, "could not have been discovered in the exercise of ordinary care in inspecting said pier hole, and that defendant did inspect and used ordinary care in inspecting the hole," etc., the jury, in returning a verdict for plaintiff, necessarily found that defendant was negligent in making the inspection; and the only question being whether defendant exercised ordinary care in inspecting the hole, and there being no question of anticipating occurrences under exceptional circumstances, it was not error to refuse an instruction relating to occurrences which an ordinarily prudent person could not anticipate.
3. ____: Anticipating Injury: Liability. The party charged with negligence may be held liable for anything which, after the injury, appears to have been the natural and probable consequence of his act or omission.
Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.
AFFIRMED.
John T. Sluggett, Jr., and R.C. Brinkman for appellant.
(1) The appellant is not liable for failure to anticipate an accident which a reasonably prudent man, looking to the situation before the accident, would not have anticipated. Kern v. Welz Zernich, 136 N.Y.S. 412. (2) Appellant is not liable for injury to his servant from accident of such a character that a reasonable man would not ordinarily have anticipated, even though proper precautionary measures would have prevented it. Potter v. Richardson Robbins Co., 99 A. 540; Yarbrough v. Lumber Co., 211 S.W. 713; Zasemowich v. Mfg. Co., 213 S.W. 799; Am. Brewing Assn. v. Talbot, 141 Mo. 674.
Kelley, Starke Hassett for respondent.
(1) The instructions given at the request of defendant and the instructions given by the court of its own motion, fully and fairly presented to the jury defendant's theory of the case. Therefore, refusal of defendant's requested Instruction 15 was not error. Stricklen v. Printing Co., 249 Mo. 614; Rutledge v. Swinney, 261 Mo. 128; Seelig v. Railroad, 287 Mo. 343; City of Kennett v. Const. Co., 273 Mo. 297; Melican v. Const. Co., 278 S.W. 361. (2) The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. Sec. 1276, R.S. 1919; Honea v. Railroad, 245 Mo. 644. (3) The Supreme Court or courts of appeals shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action. Sec. 1513, R.S. 1919; Honea v. Railroad, 245 Mo. 644.
Damages for personal injuries. Plaintiff was working for defendant in a pier hole. While doing so, the west wall of the hole caved and injured him. Negligence is charged as follows:
(1) Failure to brace the wall; (2) ordering plaintiff in the hole when the earth was wet, loose and likely to cave; (3) failure to warn plaintiff of the danger; (4) assuring plaintiff it was a safe place to work; (5) failure to brace the dirt thrown to the surface in digging; (6) failure to exercise ordinary care in inspecting the walls of the hole.
Answer was a general denial. The fourth and fifth charges were withdrawn from the consideration of the jury. Judgment was for $12,500. Defendant appealed. The facts follow:
In the fall of 1925 the defendant was constructing a building at North Market and Glasgow Streets in St. Louis. The location is an old quarry filled with clay, to which had been added an occasional load of rocks, bricks, cinders and rubbish. Defendant's excavators dug fifty-two pier holes of different sizes and depths as footings for the foundation. In digging the hole in question they threw the dirt north, south and east to the surface and near the edge of the hole. Lumber about four feet high was near the west edge of the hole, which was seven feet square and eleven and one-half feet deep. Plaintiff's only duty was the planting of rod-iron matting in the bottom of the holes to reinforce the concrete. On October 6, 1925, he planted the matting in this hole. There was a heavy rain that night which softened the bottom of the hole. The following morning, and after a laborer had removed the slush and dirt from the hole, the plaintiff and a co-iron-worker descended and proceeded to remat the hole. While doing so the west wall caved and seriously injured plaintiff.
There was evidence tending to show the condition of the earth in the west wall of the hole was such that, by the exercise of ordinary care in inspecting, it could have been discovered that the wall might cave. There was evidence to the contrary. The superintendent of defendant testified it was his duty to inspect the holes and brace the walls, if necessary, to prevent injury to employees; that he inspected the walls on the morning of the 7th and before plaintiff entered the hole; that they were of a clay nature, except the west wall was partly cinder filled; that the walls seemed solid. Other witnesses testified that after the wall caved, they observed pieces of brick, rock, tin cans and other rubbish in the dirt which had fallen from the wall into the hole.
Defendant does not here contend that the plaintiff failed to make a submissible case, but only complains of the refusal of an instruction which follows:
"The court instructs the jury that the defendant was not required to guard against a happening of occurrences which an ordinarily prudent person could not anticipate; therefore, if you find and believe that the plaintiff was injured in such a manner that such injuries could not have been reasonably anticipated by an ordinarily prudent person, defendant is not liable and your verdict must be for the defendant."
Defendant cites American Brewing Assn. v. Talbot, 141 Mo. 674, l.c. 683, 42 S.W. 679, as authorizing this instruction. In that case we held there was no substantial evidence of negligence and that the injury was occasioned by an act of God. On the record in this case it was not a question of anticipating occurrences under exceptional circumstances. It was a question of exercising ordinary care in inspecting the walls of the hole on the morning of October 7th. The defendant so understood the issue and at its request the jury was instructed as follows:
"The court instructs the jury that if you believe and find from the evidence that the condition of the earth in the sides and about the hole mentioned in the evidence could not have been discovered by the exercise of ordinary care in inspecting said hole and that the defendant, by its agents, servants and employees, did inspect and used ordinary care in inspecting the hole mentioned in the evidence, and said inspection (if you find defendant did so inspect) did not disclose an unsafe condition of said hole, then the plaintiff cannot recover in this case and your verdict must be for the defendant."
The jury found for the plaintiff and therefore found the defendant was negligent in making the inspection.
In cases of negligence, "the party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission." [Benton v. St. Louis, 248 Mo. 98, l.c. 110, 154 S.W. 473.]
The requested instruction was properly refused and the judgment should be affirmed.
It is so ordered. All concur.