Porterfield v. City of Modesto

This is an action brought by plaintiffs, Estella and Agnes Porterfield, to recover damages for the death of Charles Porterfield, the husband and father, respectively, of plaintiffs. Porterfield’s death resulted from injuries received while working as a laborer in a sewer trench being constructed by the city of Modesto. The councilmen of the city were made parties defendant, but, by consent of plaintiffs’ counsel, the court instructed the jury that if they found for the plaintiffs the verdict should be against the city of Modesto only. The case was tried by the superior court with a jury, and a verdict was rendered in favor of plaintiffs for the sum of seven thousand five hundred dollars. Based upon the verdict, a judgment was entered for said sum in favor of plaintiffs, from which defendant has appealed under the alternative method.

The record is singularly free from any claim of errors of the court in conducting the trial. The instructions were clear and succinct statements of the law necessary for the guidance of the jury and are in nowise challenged. The nature and extent of the grounds for the appeal will be found in the following statement in defendant’s brief: “The theory of the defense at the trial of said action and on this appeal is that the injuries received by said Charles Porterfield, and which resulted in his death, were received not in the line of his duty, but were caused by his gross carelessness in disobeying the orders of his superior, G. H. Freitas (city engineer in charge of the work); and also that the verdict is contrary to the evidence, for the reason that there was an utter failure on the part of the plaintiffs to establish the negligence alleged in the complaint.” In short, the defense was contributory negligence by the deceased.

It was alleged in the complaint that the said construction work was in charge of said engineer, Freitas, pursuant to the resolution of defendant; that, on October 9, 1913, a portion of the excavation or trench for the sewer pipe had been opened up for some distance and the sewer pipe laid therein and the trench ordered by the city to be closed; that the soil through which the trench was dug was of such nature that to prevent its caving and falling upon laborers working in the trench it was necessary that the sides of the trench should be secured by cribbing, in the absence of which it was a dangerous and unsafe place to work, a fact well known to defendants; that,

The testimony was that the trench had been closed up to a point near to and east of the manhole, and had also been filled west of the manhole within about six or seven feet of the top. The manhole was in course of construction and was completed to a point a few feet from the top. The following description of the manner in which the work was done is taken from respondents’ brief and is in accordance with the testimony:

“According to the testimony of all the witnesses the soil in the city of Modesto where the sewer was being constructed had on top a strata of hard material, and underlying this was loose running sand. The cave-in was on F street, between Fifth and Sixth streets. As the excavation was opened up cribbing was placed in the excavation to keep the ground from caving in. The first row of cribbing extended down ten feet and was composed of upright boards placed on both sides of the excavation and held apart by jacks. The second row of cribbing extended down the rest of the distance and was

“When Porterfield was killed the cribbing had all been removed but the excavation had not been filled up, and the workmen had placed cribbing at one point only in the excavation and that was right at the manhole, the excavation being cribbed for the distance of six feet directly opposite the place where the manhole was being constructed. The banks of the excavation west of the manhole had cracked but had not fallen into the excavation. The engineer in charge of the work knew of this fact. Always, prior to the time Porter-field was killed, the excavation had been filled from the top and at the time Porterfield was killed there was plenty of dirt on top of the ground and adjacent to the excavation to fill up the excavation. This dirt was the same dirt that had come from the excavation. Engineer Freitas was in charge of the work for the city of Modesto. The sewer pipe had been laid in the trench and a manhole was being constructed. The manhole was being constructed with brick and was circular in form. As the masons laid the brick it was necessary to fill in dirt around the manhole to give the masons a place to stand on.”

The following statement of respondents’ counsel presents the only controverted question of importance in the case: “Some jacks and timbers had been left in the excavation around and near the manhole and Engineer Freitas told Porterfield to go down into the trench and throw out the

There is no substantial conflict in the evidence except as to the instructions given to Porterfield in obedience to which he went into the trench, and upon this point the only direct testimony was given by witness G. W. Bowman, a laborer at work at the manhole, and the testimony of George H. Freitas, the engineer in charge. Bowman testified that he was working at the manhole mentioned in the evidence and was asked if he heard Engineer Freitas say anything to Porterfield the afternoon the latter was hurt. “A. Well, he told him to go down in the ditch and clean up and fill in around the manhole. Q. Do you know whether he went down into the ditch or not? A. Yes, sir; he went down. Q. What did he do when he went down there, if you know? A. Well, he taken some jacks and timbers — 2x6’s and 2x8’s out and put them up on the bank. Q. They were lying loose on the ground in there ? A. Yes, sir. They had taken out from around the manhole and throwed them back, and he put them on the bank. Q. He put them upon the bank? A. Yes. Q. Now, what happened? A. Well, I don’t know just how long he had been in there but it hadn’t been but a short time until he got caught — got crushed. He hadn’t been very long however. Q. How did he get crushed ? A. Well, he was — it seems as though he was standing leaning up against the north bank and a chunk of dirt came from the south and caught him. Q. Anyway, he was pinned against the north bank? A. Yes. Q. By a chunk of dirt? A. Yes, sir. Q. How big a chunk was that? A. Oh, I don’t know; I guess it would weigh 1,800 or 2,000 or something like that. Q. You were there and saw him pinned? A. No, I didn’t see him; I seen him a few seconds afterward. I was up at the mortar box, a little ways. I don’t know, fifteen or twenty feet. Q. What did jou do? A. Well, Mr. Freitas and I and Mr. Mueller — Phil Mueller— went down in there and tried to move it and could not do it and I taken a pick and broke the top of it off and we pulled him out and laid him out on the bank. . . . Q. Now, had you seen the ground there prior to this time — before he got hurt ?

Engineer Freitas testified that he had full charge of the work on the sewer, and that Porterfield was working with pick and shovel under his direction; that, in the afternoon, about 4:30 o’clock, he directed Porterfield to assist in hauling some brick to the manhole referred to in the testimony. “Q. Just state what you told him to do. A. Well, I told Mr. Porterfield that when he got through that brick work —hauling the brick, that he was to assist the men around the manhole by back-filling or shoveling dirt back against the manhole. Q. Where did you intend or tell him to stand in doing the work, in the ditch or on the ditch? A. I directed that he should stand in the ditch. . . . Q. What did you tell him ? A. I told Mr. Porterfield to fill in from a point where the trench was shallowest, and indicated the point where I wanted him to work. Q. Where did you indicate to him? A. I indicated a point down along about between where it is three and a half feet deep and three feet deep in the diagram (indicating).” He testified that the sewer at that point was sixteen feet deep, but it had been partly filled and was between three and three and a half feet at the point indicated and sloped down to the manhole where it was about eight feet deep; that he sent Porterfield into the ditch to fill out the time until 5 o’clock, quitting time; that the ditch was forty-four inches wide; that the distance from the point where he testified he directed Porterfield to stand to the center of the manhole was twenty-seven and one-half feet; that the crack in the earth, mentioned by witnesses, commenced about where Porterfield was to stand (a photograph was introduced showing the surface and the ditch in that vicinity). ‘ ‘ The back filling was generally done from the top. That was the regular way of doing. Q. What was the object of having it done from this trench on this special occasion ? A. Why, at that time the men were working around the manhole — the brickmen and their assistants, and it wasn’t possible to throw the dirt from the top over the top of these men; it would interfere with their ■ work. Q. Well, I believe you said it was

Appellant’s contention is that the verdict of the jury must necessarily have been formed upon the testimony of these two witnesses. “We contend,” says the brief, “that when the jurors rejected the direct and positive testimony of Mr. G-. H. Freitas, and brought in a verdict based upon the testimony of Bowman, that they were acting under passion and prejudice and were carried away by sympathy for the young widow and her child.” And we are admonished to read carefully the testimony with the assurance that “it must be evident from the answers given by Bowman, especially on his cross-examination, that he was trying to build up a case for the plaintiffs. ” We have endeavored to comply with this admonition. It is true that Bowman’s testimony at the trial did not harmonize in all respects with his testimony at the coroner’s inquest; also that he testified at the trial to some important facts not brought out at the inquest. Experience shows that these features are not unusual. In preliminary inquiries, especially in coroner’s inquests involving no element of crime, it is seldom found necessary to enter into a minute examina

There was evidence justifying the jury in finding that Porterfield was directed by the engineer in charge to work at a place in the trench admittedly known by the engineer to be dangerous. That it was dangerous appeared from the fact that shortly after he had commenced work Porterfield, was killed, and was killed by the caving in of a block of earth which had for some days given evidence of its liability to fall into the trench. Whether Porterfield knew of the danger, or to what extent he appreciated it, we do not know. As the cracking of the earth at the point where he was killed was known to Bowman, his fellow-laborer at the manhole, it is fair to assume that Porterfield had observed it, 'but we cannot assume, when told to go into the trench by one who had the authority to direct the work, that he appreciated the danger and recklessly exposed himself to the consequences and the risks attendant upon the performance of the orders given him. Indeed, we do not understand appellant to claim this. Its claim is that he was told to work at a point in the trench where, in fact, there was no danger, and that he voluntarily and needlessly assumed a position of peril, and hence plaintiff cannot recover. But appellant overlooks or entirely rejects the testimony that deceased was told to go to work at the very point where he was killed.

If we could unhesitatingly accept appellant’s view of the evidence we might accept its construction of the Employers’ Liability Act of 1911 (Stats. 1911, p. 796), namely, that while the statute has abolished the doctrine, of assumption of risk and “while the employer must furnish his employees with safety appliances and safe places to work, that, nevertheless, the moment the employee, without so being required by his duties and not acting under orders of .his employer, leaves that safe place and goes off on private excursions of his own to other parts of the work, he becomes nothing more than a trespasser so far as any liability for injuries received by him

The learned trial judge gave instructions upon the subject, to which no objection is now made, quite as favorable to defendant as the case would admit of, and it seems to us in taking them as their guide the jury were supported in their verdict by the evidence.

The judgment is affirmed.

Hart, J., and Ellison, J., pro tem., concurred.