Plaintiff, an employee of M. Summers Company, a general contractor which had a contract to perform a job which included laying underground telephone cables for The Inter-County Telephone Company, was injured when the walls of a trench in which he was working caved in on him. Plaintiff sued Inter-County and Telecom Engineers, Inc., an engineering firm which designed the project and which had a contract with Inter-County to inspect the job and make
Plaintiff's petition alleged, among other things, that although Inter-County had contracted with Summers to do the work, including digging trenches and laying telephone cables, it retained the right to control the excavation and work; that it knew that the work which Summers was to do involved a high risk of injury to employees of Summers unless special precautions were taken; that Inter-County owed to the employees of Summers a non-delegable duty to take a special precaution to see that such injury did not occur; that steps such as shoring or bracing or sloping the sides of the trenches to avoid dangers of cave-in were not taken; and that as a result of such negligence plaintiff was injured.
In response Inter-County answered that it was not liable to plaintiff because it had contracted with Summers, an independent contractor, to do the work; that it did not retain control; that the work was not inherently dangerous; that Summers and plaintiff had accepted and were operating under the Workmen's Compensation Act; that plaintiff was a statutory employee under the act; and that his only remedy was under that act. The answer also pleaded contributory negligence.
The case was submitted to the jury on the basis of verdict directing instructions (set forth in full infra) which called for recovery if defendants had the right to control the trenching and excavating and negligently failed to shore up or brace the trench adequately, resulting in injury to plaintiff. Contributory negligence instructions also were given. Plaintiff obtained a verdict and judgment for $15,000 against both defendants. They appealed to the Missouri Court of Appeals, Kansas City District, which reversed. On application of plaintiff, the case was transferred here and we now decide it as though here on direct appeal. We reverse and remand as to Inter-County and reverse as to Telecom.
Inter-County contracted with Telecom to design and plan a project for rehabilitating and improving 190 miles of existing telephone lines and facilities and adding some new lines. Permission to lay underground cables along and under public roads of the county was obtained from Worth County. Inter-County then contracted with Summers to construct the system. Telecom, under its contract with Inter-County, was to perform the job of inspecting materials and workmanship on the job.
The main telephone cable which was installed along the road right-of-way was buried automatically at a depth of 30 inches by use of a vibrating plow. Customer connections which ran from the main cable were buried at a depth of 24 inches in trenches dug by hand or with a backhoe. When it was necessary for the line to cross an existing highway, a two inch pipe was driven under the highway. To accomplish this a trench perpendicular to the highway was excavated on one side of the highway and a trench parallel to the highway was dug on the other side. After the trenches were dug to the required depth, the backhoe was used to push the pipe under the highway from the perpendicular ditch to the parallel ditch and the cable then was threaded through the pipe.
Plaintiff was employed by Summers in April 1971 and was assigned to digging the lateral ditches for customer connections. On May 14, 1971, plaintiff reported for work at contractor's building. It had rained and, except for some employees who wanted to work, most of the employees had been laid off. A crew was dispatched to push a pipe for the main cable under a highway and plaintiff was assigned to it.
When the crew arrived at the site where the highway crossing was to be installed, the backhoe operator first dug perpendicular and parallel ditches adjacent to the highway. The perpendicular ditch, which was on the east side of the highway, was approximately 20 feet in length. The depth of the ditch ranged from about 4 feet at the highway to about 12 feet at its east end because the land sloped upward from the highway. It was somewhat wider than the width of the backhoe bucket with which it was dug. The walls were vertical and were not braced or shored in any manner.
While they were attaching the third section of pipe, plaintiff heard someone "holler." He stood up and looked around and saw the north wall of the trench collapsing. He put his hands up against it and remembered dirt going over his head. Others in the crew said that he just disappeared from view but that when the dirt had settled around him, he was buried to his chest and shoulders. His fellow employees then jumped in and dug him out.
Other portions of the evidence will be recited in connection with our discussion of the various issues raised.
Inter-County's first assignment on appeal is that the trial court erred in failing to direct a verdict in its favor. Its motion for a directed verdict alleged that the construction of this project was being performed by Summers, an independent contractor; that plaintiff was Summers' employee; that the work being performed was not in and of itself dangerous but became dangerous only by reason of negligence of the independent contractor and its employees in doing the work; that Inter-County owed no duty to plaintiff; and that it had not been negligent.
Plaintiff offered no evidence that either Inter-County or Telecom exercised physical control over Summers' employees. The testimony of defendants' witnesses was to the effect that they did not exercise such control and did not direct how the job was to be performed, their work being limited to activity designed to make certain that construction was according to the plans and specifications. Plaintiff did offer in evidence the contracts between Summers and Inter-County and between Inter-County and Telecom. Because the project was being financed by REA, these contracts were on standard REA forms. Provisions therein gave Inter-County, on its own or through Telecom, the right to inspect and to take steps necessary to secure proper performance, including quality of materials and workmanship, but such provisions did not destroy the intended relationship of owner and independent contractor. Williamson v. Southwestern Bell Tel. Co., 265 S.W.2d 354 (Mo.1954); Boulch v. John B. Gutmann Const. Co., 366 S.W.2d 21 (Mo.App.1963).
It is true, as Inter-County contends, that as a general rule one contracting with an independent contractor to do work is not normally liable for bodily harm caused to another by a tortious act or omission of the independent contractor or his servants. However, there is a well established exception to that rule where the work subcontracted involves a special or inherent danger to others. This exception was described in Stubblefield v. Federal Reserve Board of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947), as follows:
The case of Carson v. Blodgett Const. Co., supra, contains a more explicit statement as to just when work is inherently dangerous so as to impose liability on the owner or contractor, despite the independent contractor arrangement. It states, 174 S.W. at 448:
Most of the above cited cases involved situations where those permitted to recover on the basis of the inherent danger exception were members of the public who were injured. However, that was not true in Mallory v. Louisiana Pure Ice & Supply Co., supra. In that case the ice company contracted for the erection of a building adjacent to their existing plant. A subcontractor had the job of excavating for the foundation which went two feet deeper than the foundation of the old building. In addition, it was to extend six inches under the old foundation. While an employee of the subcontractor was working in the excavation, the old wall collapsed and plaintiff was injured. There had been no shoring and no support provided for the old wall. Plaintiff sued the ice company, the owner, and the general contractor, alleging negligence in undermining the old wall, allegedly dangerous work, without taking any steps to secure the stability and preservation of the old wall. Defendants contended that they were not liable because the work was being done by a subcontractor and was not inherently dangerous, the danger arising only because of negligence by the subcontractor in the manner in which he performed the job.
This court rejected that argument, 320 Mo. 113-14,
The court subsequently concluded, 320 Mo. at 115, 6 S.W.2d at 625:
The defendants in Mallory also contended that the inherent danger exception was not available to plaintiff as an employee of the subcontractor. After referring to an A.L.R. annotation and some cases which had considered this question, the court held, 320 Mo. 117, 6 S.W.2d 626:
Thus, our cases have clearly recognized a cause of action against one who contracts for work to be done by an independent contractor for breach of the employer's non-delegable duty imposed by law where performance of the contract necessarily involves inherently dangerous activity. This cause of action is an exception to the general rule also recognized in our cases that the employer is not ordinarily liable for the acts or omissions of an independent contractor. To make a submissible case under this exception, our cases have established that the plaintiff must present evidence that: (1) performance of the contract necessarily involves some inherently dangerous activity; (2) the activity which caused the damage was reasonably necessary to the performance of the contract and was inherently dangerous; (3) the one contracting with the independent contractor negligently failed to insure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity; and (4) plaintiff's damage was a direct result of such negligence. Inherently dangerous activity is that which necessarily presents a substantial risk of damage unless adequate precautions are taken.
As previously noted, plaintiff alleged in his petition that the work to be done by Summers under the contract with Inter-County was of a type which was likely to create a substantial risk of harm to Summers' employees unless special precautions were taken. In support thereof, he offered evidence that the contract called for insertion of the pipe under the road at a substantial depth; that the walls of the trench in which plaintiff was injured were vertical, not sloped; that the ditch at that point was between 6 and 12 feet deep; and that there was no shoring or bracing of any kind. He offered in evidence the chapter on "Excavation and Shoring" from the "Manual of Accident Prevention in Construction" of the Associated General Contractors of America, which manual was incorporated by reference in the contract between Inter-County and Summers. Section 24-7 of Chapter 24 of that manual states in part as follows: "Trenching operations are common to many types of construction and maintenance projects and are inherently dangerous. Due to the great exposure, numerous accidents in connection with trenching occur every year." It then states that a few precautions will eliminate most of the risk, after which such precautions are listed. The first one states: "1. Shoring and/or bracing should be placed in every trench over four feet in depth, regardless of soil type, except solid rock, unless banks are
Plaintiff also offered expert testimony to the effect that a trench 6 to 12 feet deep which has vertical dirt walls with no shoring or bracing is by its very nature dangerous to persons working in that trench. In explaining his testimony to that effect, the witness said: "Soil isn't meant to be stood up straight, and in nature it usually doesn't occur that way, at least not for long. So if there is no shoring or any kind of bracing material against the side of the trench, if it were very deep, this would be a dangerous situation. This material here, the manual of Accident Prevention, indicates a safe depth would be four feet. Anything deeper than this would have danger of caving in."
Inter-County's motion for directed verdict alleged that the work being performed by Summers under the contract was not in and of itself dangerous but became dangerous only by reason of negligence of Summers and his employees in doing the work. However, the evidence outlined above was clearly sufficient to present a factual question as to each element of the inherent danger theory as summarized above. Consequently, it was not error for the trial court to overrule Inter-County's motion for directed verdict.
As an additional basis for contending that a verdict should have been directed in its favor, Inter-County argues in its brief that "If plaintiff was a servant, his recovery is barred by Workmen's Compensation." In support thereof, it cites Montgomery v. Mine La Motte Corp., 304 S.W.2d 885 (Mo. 1957). This point is not very clearly articulated in Inter-County's brief. Apparently from its answer and what the brief does say, it is contending that under § 287.040, RSMo 1969, plaintiff was a statutory employee of Inter-County and is limited to recovery under the terms of the Workmen's Compensation Act. The Mine La Motte case so held with reference to a truck driver for an independent contractor who drove his truck into defendant's mine and while loading his truck in the mine was injured.
Inter-County is not entitled on this appeal to relief on the basis of the foregoing assignment. Although the issue was raised in its answer, no evidence was introduced to support this affirmative defense. When Inter-County filed its motion for a directed verdict, it did not raise or rely on this issue. Likewise, in its motion for new trial, there is no reference to the Workmen's Compensation Act or whether plaintiff was under it or whether he was a statutory employee of Inter-County. Consequently, the issue was not preserved and is not now before us for review.
Inter-County's next assignment on appeal is that the court erred in giving Instruction No. 3 which was as follows:
"INSTRUCTION No. 3
As previously noted, plaintiff offered no testimony that Inter-County exercised control over Summers' employees or over the trenching or other work done under the contract. He relied solely on the
It is also immediately apparent that Instruction No. 3 does not properly submit the elements of the inherent danger theory. Thus, there is no basis for upholding the jury's verdict and the judgment must be reversed. However, since we have concluded that plaintiff did make a submissible case under that theory, the question arises as to whether this case should be remanded for a new trial. In Zimmerman v. Associates Discount Corp., 444 S.W.2d 396, 398 (Mo. banc 1969), we considered a similar question and stated:
We find the reasoning of Zimmerman persuasive here. We therefore conclude that the furtherance of justice requires that this case be reversed and remanded as to Inter-County to afford plaintiff an opportunity to seek recovery under the inherent danger theory.
In response, plaintiff urges that Telecom had the right to control the trenching operation. We disagree. The evidence does not show that Telecom exercised control or had a right to control. Plaintiff makes no assertion that Telecom contracted for inherently dangerous activity and the evidence adduced did not support such a theory against Telecom. We therefore conclude that the trial court should have directed a verdict in favor of Telecom.
The judgment against Telecom Engineers, Inc. is reversed. The judgment against The Inter-County Telephone Company is reversed and the cause is remanded for a new trial.
BARDGETT, HENLEY, DONNELLY, RENDLEN and SEILER, JJ., and McMILLIAN, Special Judge, concur.
MORGAN, C. J., not sitting.