Facts
On February 19, 1981, construction foreman I. supervised the excavation of a 2.1 m deep construction pit for the expansion of the basement of a single-family house in Z. The vertical side walls of the pit were not braced, as I. and his employees had refrained from doing so due to the alleged firmness of the ground. As a result, one of the walls of the construction pit collapsed and fatally buried worker M.
The Bremgarten District Office initially convicted I. of negligent homicide and endangerment through violation of the rules of construction engineering. However, upon I.'s objection, the Bremgarten District Court acquitted him, as the waiver of bracing did not constitute negligence under the given circumstances. The appeal filed by the public prosecutor's office against the acquittal was, however, upheld by the High Court of the Canton of Aargau. I. was fined CHF 400 for negligent endangerment through violation of the rules of construction engineering and for negligent homicide.
Considerations
The Federal Supreme Court dismissed I.'s nullity appeal. It stated that the provisions of the Ordinance on Accident Prevention in Excavation and Shaft Construction apply mutatis mutandis to construction pits of larger dimensions. The disregard of the guidelines, which require bracing or sloping for an excavation depth of more than 1.5 m with vertical walls, constitutes a violation of recognized rules of construction engineering within the meaning of Art. 229 of the Swiss Criminal Code. Even if I. may not have correctly assessed the specific risk, this does not exempt him as the responsible foreman from the duty to comply…