Spell v. Mechanical Contractors, Inc.

Plaintiff bases his case upon the allegation that the defendant knew, or as a result of its experience in making excavations, should have known, that the continuous rain had made the fresh dirt in the ditch soft and unstable and that, notwithstanding such knowledge, defendant failed either to barricade or bridge the ditch or to give warning of this unsafe condition. Plaintiff has neither allegation nor proof that the initial construction of the ditch was negligently or improperly done. The sole evidence relating to that construction came from defendant’s witnesses and tended to show that the…