31 Nev. 501 | Nev. | 1909
Lead Opinion
By the Court,
This is an action brought by the plaintiff, respondent herein, against the defendants, appellants herein, to recover damages in the sum of $10,000 for personal injuries sustained by the plaintiff on account of falling into an excavation alleged to have been made by the defendants in the sidewalk on the south side of Miner Avenue, in the town of Goldfield, and in front of the premises of defendants, which said excavation, it is alleged, the defendants had negligently failed to properly safeguard to prevent accidents to pedestrians passing along and upon said Miner Avenue. The case was tried by the court without a jury, and a judgment for damages awarded in favor of plaintiff for the sum of $3,500. From the judgment and from an order denying defendants’ motion for a new trial, this appeal is taken.
That plaintiff fell into the excavation which was admittedly
1. In support of the defense first mentioned defendants offered in evidence the, following written instrument: "Goldfield, Nevada, May 4, 1907. The undersigned agree to excavate the entrance to basement of warehouse on Miner Avenue for Feutsch & Gasser, for the sum of Ten Dollars ($10.00), and to keep same covered for the protection of pedestrians until permanent doors are put in place. D. B. Gallagher. Witnesses: John M. McNulty. A. Carlin.” Objection having been interposed to its admission, it was admitted subject to objection, and later, when the court came to decide the case, it was stricken out.
The court rendered a written opinion in the case from which we quote the following, with reference to this writing: "In fact, the paper itself and taken in connection with other ■facts introduced in evidence has a very strong tendency to discredit this paper as being a bona fide instrument—whatever it may be called. The evidence of the defendant Feutsch shows that Gallagher had the contract for the excavation of this basement, and it would seem rather peculiar under the circumstances that an independent writing should be drawn up with so much care, executed in the presence of two witnesses, for a $10 contract, and especially relieving the defendants for a violation of the statutes. Again, the only thing that the defendant Feutsch seemed to know about this instrument was that the signature of Gallagher was genuine. He did not see him sign the instrument. He did not know who wrote the instrument. He knew nothing whatever about it, except the fact that Gallagher’s signature was genuine. No witnesses
In any event, this is not such a case that the defendants could be relieved of responsibility by showing that, if negligence existed, it ivas the fault of an independent contractor. An excavation of the character of the one in question in this case dug in a well-traveled street or thoroughfare is inherently dangerous to third persons traveling thereon, and likely to lead to injury to them unless thoroughly safeguarded, and it is incumbent upon the proprietor to foresee such mischief, and to take precautions against it, and he cannot shift the responsibility to an independent contractor so as to relieve himself. (1 Thompson, Com. on Negligence, secs. 652, 653; Village of Jefferson v. Chapman, 127 Ill. 438, 20 N. E. 33, 11 Am. St. Rep. 136; Barry v. Terkildsen, 72 Cal. 254, 13 Pac. 657, 1 Am. St. Rep. 55; Colgrove v. Smith, 102 Cal, 220, 36 Pac. 411, 27 L. R. A. 590; Spence v. Schultz, 103 Cal. 208, 37 Pac. 220; Gaslight Co. v. Norwalk, 63 Conn. 495, 28 Atl. 32; Railroad Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269.) See, also, Comp. Laws, 271. Thompson, sivpra, sec. 653, says: "This principle has often been applied so as to charge a proprietor with liability for damages to a traveler -in consequence of one who has contracted with the proprietor to do work on his premises having made a dangerous excavation in the street, and failed properly to guard the same for the protection of the traveling public. These decisions generally proceed upon the principle that where work to be done necessarily constituted an obstruction or defect in the street which renders it dangerous to travelers, unless properly guarded or shut off from public use, the principal for whom the work is done cannot defeat a just claim for damages by proving that the work which constituted the defect or' obstruction was the work of an independent contractor.”
2. From the opinion of the trial judge we quote the following: "We now come to the next defense—that is, that the excavation was thoroughly safeguarded by being entirely covered with three planks 2x12 inches wide and by a door which
It is very strenuously urged upon this appeal that the finding of the trial court to the effect that the excavation was not safeguarded prior to the accident is contrary to the evidence. It is true that two witnesses other than the defendant Feutsch testified that on the evening of the accident and prior thereto they had observed the excavation, and that it was safeguarded, and that they were positive of the date because it was the evening of the circus. Defendant Feutsch testified to the same effect. Upon the other hand, there is positive testimony that there were no safeguards around the excavation at the time of the accident; that it was not protected “either by electric lights, candles, barrels, or lumber. Nothing at all, rough dirt thrown on the sides.” The plaintiff, her sister, and another witness testified that upon the evening of the accident and shortly after it occurred the defendant Feutsch stated that "he was very sorry the place was not ■covered up” or “was sorry the hole wasn’t covered.” In his testimony he does not deny that he made such statements. It would be quite remarkable if the defendant knew that the excavation was protected in the manner claimed prior to the accident that he would not comment upon the removal of the safeguards, but, upon the contrary, the testimony stands uncontradicted that he expressed a regret that the hole was not covered.
Counsel for appellants’ theory of the case appears to be that the excavation was safeguarded as claimed prior to the accident, but that in the meantime some unknown person or per
From all of the evidence in the case we cannot say that the' conclusion of the trial court that the excavation was not safeguarded until after the accident is contrary to the evidence. The trial court is the exclusive judge of the credibility of the witnesses, and, as this court has frequently decided, only in cases where a judgment is without substantial evidence to support it is this court authorized to disturb the judgment for want of evidence.
The judgment and order denying the motion for a new trial are affirmed.
Rehearing
On Petition for Rehearing
By the Court,
It is urged, on petition for rehearing, that in the opinion heretofore rendered we did not pass upon appellants’ contention that there was a failure upon the part of the plaintiff to show that any duty was imposed upon the defendants to guard the excavation, for the reason that it was not within a lawfully established street or public highway, and not within the portion thereof being used by the public as a thoroughfare. We did not deem it essential to determine whether Miner Avenue in the town of Goldfield ivas a "public highway” as that term is used in the statute, for the reason that we considered appellants’ liability established independent of that question. It was a street or highway in fact being used by the public as such. We cited section 1 of an act entitled "An act to secure persons and animals from danger arising from mining and other excavations? approved February 8, 1866 (Comp. Laws, 271), which reads: "Any person or persons, company or corporation, who shall hereafter dig, sink, or excavate, or cause the same to be done, or being the owner or owners, or in the possession, under any lease or contract, of any shaft, excava
The trial court held, and we think correctly so, that the appellants were bound, under the provisions of this statute, to keep the excavation in question protected. The earnestness and apparent sincerity with which counsel for appellants contended that the provisions of this act only apply to excavations for mining purposes may have entitled them to a more extended consideration of the point than that given in our former opinion. We have never been impressed, however, that the contention possessed any considerable force. We think it clear, both from the title and body of the act, that it was the intention of the legislature to protect persons and animals from all excavations, regardless of the purpose for which they were dug. Mining excavations were mentioned particularly, we think, only because they comprise the great majority of all excavations in this state. The great purpose of the act was to protect persons and animals from injury resulting from falling into unprotected excavations. The same injury would result from falling into a certain particular excavation, regardless of the purpose for which it was made. For the purpose designed to be accomplished by this act, all excavations are in a common class, and the fact that the legislature saw fit to specifically designate those made for mining purposes and to comprehend all others in general terms does not, we think, limit the provisions of the law to mining excavations only.
While this court has never before been called upon to construe this statute, its provisions were involved in the case of Wiggins v. Henderson, 22 Nev. 103. In that case two Wiggins brothers had been convicted and fined in the justice court for leaving a well unprotected. While the judgment in that case
A rehearing is denied.