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FITZEN v. CREAM TOP DAIRY

No. 7893.

249 P.2d 806 (1952)

FITZEN v. CREAM TOP DAIRY et al.

Supreme Court of Idaho.

October 29, 1952.

Attorney(s) appearing for the Case

Anderson & Anderson, Pocatello, for appellants.

E. B. Smith, Boise, for respondents.

THOMAS, Justice.

Cream Top Dairy operated a dairy near, but outside, the city limits of Pocatello, Idaho. Franklin Richard Fitzen entered into an oral agreement with the Dairy to dig a cesspool as a necessary part of the sanitary sewage disposal system of the Dairy. While so engaged Fitzen encountered bad air and poisonous gas some 37 feet below the surface which seeped into the area below the shaft, overcoming him and causing his death, on August 7, 1951.

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