Comerford v. James Kennedy Construction Co. , 50 Mont. 196 ( 1915 )

MB. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to recover damages for the death of Thomas Comerford, caused by the alleged wrongful acts of the city of Missoula and the James Kennedy Construction Company, committed in the course of installing a public sewer. Comer-ford was a laborer employed by the construction company in excavating a trench for the sewer-pipe, and while so engaged was hilled by a cave of the trench. The defense was a denial of negligence and a plea of contributory negligence on the part of the deceased. The trial resulted in a general verdict against the construction company, and it has appealed from the judgment and from an order denying its motion for a new trial.

There is not any difference of opinion as to the rules of law governing this ease, but appellant insists that the verdict is [1] contrary to the evidence offered in support of the plea of contributory negligence, and conflicts with certain instructions given by the trial court. Whether either of these contentions should prevail depends altogether upon the consideration of that evidence.

According to counsel for appellant, but two witnesses, John Gustafson and John Murtz, gave testimony tending to disclose negligence on the part of Comerford which contributed to his death; but that evidence is to be viewed in the light of the further testimony that the deceased was a practical miner of some experience in that occupation.

The testimony of Gustafson may be summarized as follows: He was foreman of the construction company, in charge of the men at the time of the cave which caused the death, and was upon the surface some ten feet east of Comerford, who was facing east, shoveling dirt into a bucket at the bottom of the sewer trench, which was seventeen or eighteen feet deep. The trench was shored with sheathing placed perpendicularly with three or four sets of heavy stringers, placed transversely, and these kept in place by screw-jacks. From four to six feet west of Comerford, with his face to the west, was Murtz, laying the seiver-pipe, and west of Mm was a helper. About 2:30 o’clock on the afternoon of September 24, 1910, while Gustafson was overseeing the work, he noticed the sheathing “going down,” and, surmising a cave, called to the men, “Come up, boys; the sheathing is giving way,” or words to that effect, and this was repeated immediately, but he did not have time to call again. At this warning Murtz also called to Comerford to get out, and Murtz and the helper went to the west and escaped. “Comer-ford stood and looked up, but did not make any attempt to move away.” When the timbers started to give they moved slowly. It was three or four minutes between the time the first warning was given and the cave occurred. By going to the east four, six, or ten feet past his bucket and under the lowest screw-jack, which was two or three feet above the bottom of the trench, or between that jack and the one, two or three feet above it, Comer-ford could have reached a place of safety. The witness further testified: “I think he could have seen the wall moving.” The body of Comerford was held down in the trench by a piece of one stringer broken by the cave.

In the main, the testimony of Murtz is corroborative of that of Gustafson. He testified, however, that' the warning given by the foreman was “loud enough so we all heard it.” And again: “As soon as he said ‘Get out!’ I left my shovel on top of the pipe and ran back west. I did not run; I walked — walked as fast as I could. I was scared when the foreman told us to get out of there, because the bank was cracking, I had to get out. I left my shovel down and walked as fast as I could ten feet, and then the crash came. Comerford did not say anything to me when I told him to get out. He looked up. * * * I could not see that the bank was cracking, then, nor could I see the sheathing move. It was not bellied; there were no indications as far as I could tell that anything was wrong.”

It is now urged upon us that this evidence was uncontra-dicted ; that it established the defense of contributory negligence, and. in returning a general verdict for plaintiff the jury must have disregarded it arbitrarily. Upon the assumption that Gus-tafson and Murtz were credible witnesses, and tbeir testimony should be accepted as true* and the further assumption that Comerford heard and understood the warning in time to escape, an inference of contributory negligence might well be drawn, but the burden of proving contributory negligence was upon [2] the defendant, and if upon the evidence as a whole the jury were justified in discrediting these witnesses or in drawing an inference favorable to the deceased with respect to the care exercised by him, or if they were unable to say that the evidence preponderated in favor of the claim that his own negligence proximately contributed to his death,, then the finding of the jury must be accepted by this court after it has been reviewed and approved by the trial court upon the motion for a new trial. Doubtless the jurors, viewing the conflicting statements of Gus-tafson and Murtz with reference to the period of time which elapsed between the warning and the catastrophe in the light of common experience, concluded that Murtz was much more nearly correct in his estimate, and that three or four seconds probably elapsed, rather than three or four minutes.

The testimony of Gustafson discloses that at the time of the cave, the contractors had cross-ties laid over the sewer trench to which rails were attached, and on this track a combination tram and hoist was running back and forth, lowering and raising the buckets in the trench and disposing of the dirt taken therefrom. The trial court by instruction 27 directed the jury that it was not enough that the warning was given in time for Comer-ford to escape, but that it must have been given loudly and distinctly enough to be heard and understood by a person of ordinary hearing at the place where decedent was working. By instruction 20 the court declared that a presumption, which had the effect of evidence, existed in favor of the deceased that he exercised due care for his own life and safety; such care as a person of his age, ability, capacity and experience ordinarily exercises. Viewed in the light of that presumption, and of the evidence that Comerford was a miner of experience, and of the circumstances surrounding him, his position in the trench seventeen or eighteen feet deep, with the noise of the tram overhead, and in the absence of any direct evidence that he heard the warning or understood its meaning, or saw the threatening danger, the jury might well have concluded from the entire case-made that he did not hear Gustafson, or, if he heard the call, that he did not understand it to be a warning, and that the circumstances were not such that he ought to have heard and understood.

This construction of the evidence disposes of the contention that the verdict is against the law as declared by the court in its instructions.

There are, however, facts and circumstances disclosed by the record which might well have prompted the jury to discredit the testimony of Gustafson and Murtz, but, in view of our conclusion above, these need hot be considered.

The judgment and order are affirmed.

Affirmed.

MR. Chief Justice BraNtly and Mr. Justice SaNNer concur.