Darden v. Robert G. Lassiter & Co., 198 N.C. 427, 152 S.E. 32 (1930).

Wilson Daily Times, 31 October 1929.

Darden v. Robert G. Lassiter & Company reached the North Carolina Supreme Court on appeal from Wilson County Superior Court. Camillus L. Darden, administrator of the estate of Evan Powell, filed the action against Robert G. Lassiter & Company to recover damages for Powell’s death of plaintiff’s death, which was alleged to have been caused by the wrongful act, neglect, or default of the defendant. The county court entered a judgment for plaintiff, and Lassiter & Company appealed.

The evidence showed that on December 29, 1927, Powell was working for Lassiter in a trench or ditch cut along Mercer Street in the town of Wilson in preparation for laying sewer or water mains. The trench was cut by a ditching machine to approximately the required depth, and Powell was engaged in smoothing out the bottom of the trench to a uniform grade, called “fine grading,” when the trench caved in and injured him, along with two other workmen. Powell died the following day.

Powell, “a colored man about 29 years of age,” had been employer by Lassiter as a day laborer for about five months and working with this particular crew for about two months prior to his injury. The trench was approximately 7 feet deep and about 21 inches wide. The ground was saturated with water from heavy rainfall.  Water seeped in from the walls on both sides of the trench, and there had been a couple of cave-ins prior to this one. About fifteen yards from the most recent cave-in, workers encountered quicksand about 6 feet below the surface of the ground. Lassiter installed a pump to keep the water out of the trench.

Lassiter’s foreman, O.L. Pickering, directed that certain bracing be used to keep the walls of the trench from falling in — two upright pieces of timber, placed from 8 to 16 feet apart along the sides of the ditch, with two horizontal braces placed between them, one at the top and the other at the bottom. However, contrary to custom, Pickering provided no longitudinal stringers to keep the banks of the ditch from falling or caving in.

On the day of the incident, Pickering went to lunch about 12:30 and left the others working in the ditch. There were no braces for a space of 18 or 20 feet (one witness said from 35 to 40 feet) immediately behind the ditching machine where Powell was working. Shortly after the foreman left, the bank of the ditch suddenly caved in just beyond the last brace and temporarily buried three of the workmen.

Foreman Pickering testified, in part: “It was my duty to see that these braces were put in. I instructed them to put the braces in at intervals of 8 feet. There was a space behind the machine of about 12 or 15 feet in which there were no braces. They had put in all the braces I had instructed them to put in except the last one. They did not have it in when I left. I left them to put that in — the one right behind the machine — and to lay the pipe. Evan Powell was in the ditch at the time I left. He was leveling the bottom or doing fine grading.”

Lassiter offered evidence that Powell had a duty to help put in braces and assumed the risk of his injury. However, this was countered by evidence showing that Powell had no such responsibility. Other employees were instructed to place the braces in the ditch under the immediate supervision of the foreman, who, in turn, was under the supervision of an engineer employed by Lassiter.

The usual issues of negligence, contributory negligence, assumption of risk, and damages were submitted to the jury, resulting in a verdict for the plaintiff. The defendant appealed.

Chief Justice Stacy wrote the opinion. “The case, with evidence sufficient to carry it to the jury, was tried upon the theory that in law the defendant was in duty bound, in the exercise of ordinary care, to provide a reasonably safe place for [Powell] to work, and to furnish him reasonably safe means and suitable appliances with which to execute the work assigned, subject to the limitation that the deceased took upon himself, as an employee or servant of the defendant, the ordinary risks of danger incident to the employment, which were obvious or could have been perceived by him in the exercise of his senses and by the use of ordinary care and circumspection. In this, there was no error. …

“Whether ‘fine grading’ in the bottom of a trench, such as [Powell] was doing in the instant case, is dangerous, or otherwise, would seem to depend upon a variety of circumstances. In some cases, it might be entirely safe; in others, not. The size and dimensions of the trench might affect it. The character of the soil would certainly have some influence. The presence of lime, stone, or quicksand, or of earth newly filled in, the moisture in the ground, and numerous other conditions might render such work more or less safe, or more or less hazardous. The state of the weather or the season of the year might have something to do with it. But all of these are matters of fact, about which there may be conflicting evidence, as in the instant case, calling for determination by a jury.

“Indeed, in the instant case, the fact that [Powell]’s work was done under the immediate supervision and direction of the defendant’s foreman would seem to be equivalent to an assurance that he might safely proceed with it. … When the foreman went to get his lunch, he left [Powell] at work in the trench, leveling the bottom or doing fine grading. He was therefore, at the time of leaving, in a better position than [Powell] to observe and appreciate the danger.

“The case was properly submitted to the jury.

“No error.”

Evan Powell’s death certificate. Cause: “Paralysis. Crushed by falling dirt while digging a ditch in town of Wilson; fractured vertebrae.” Powell was a native of Whiteville, Columbus County, in southeast North Carolina.

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