*1
KIMIKO Jr., deceased, of Fred R. Estate Appellant, Plaintiff and COMPANY, POWER LIGHT
UTAH corporation, Defendant Respondent.
No. 9402.
Supreme Court of Utah. 26, 1961. Oct.
280
ing as a labor Mountain- foreman for com- Company. This States Construction pany previously contracted a di- Bureau of Reclamation to construct Clyde Phil- Robert V. C. Patterson and version River dam across Weber lips, appellant. Ogden, for Slaterville, Ogden, in a rural area west of July, Utah. Work had commenced in
Ray, Nebeker, Quinney Marvin J. prox- in close area was Bertoch, Irvine, Sidney Bau- F. Gerald G. construction imity high tension wires owned com, City, respondent. Salt Lake
maintained the- From defendant. day last week his July, until NELSON, Judge. District death, about Shook had labored around action, plaintiff, as In this adminis- these wires. Shook, Jr., tratrix of the Estate of Fred R. required diverting the river so- job deceased, judgment against seeks the river bed. could be built across the dam decedent, fendant for the death of the said dam, putting' excavating for It involved neg- alleging he was killed because of the banks, on the sides of the in cut-off walls ligence of the defendant. *3 pouring footings and making the forms proving negligence burden of The cеment of which the dam was constructed. plaintiff. held, by The lower court on the July proceeded during and'. The work verdict, for directed the judgment its was. half the dam August. The north of produce failed plaintiff had to August,. During poured incident. without discharge to sufficient burden. sub-contractor,, Trumbo, a L. Lawrence appeal rig place from a cement founda- brought
On directed verdict in a toll to the light review evidence in the cut-off walls on the north must the tions for we losing party.1 This, the to of the river favorable south sides bed. most however, meаn ignore we does must Company Light & in- Utah Power The may facts which undisputed favorable to tops which could be hot used to stalled party. prevailing the hot When Mr. Trumbo- energize the wires. requested shows: Fred work he record R. the
The commenced Jr. September 5, 1956, Company Light place pole- to at & killed was about lines, p. power m. to lift years of 5 :30 He river bed and at hour was 27 the age, and that at that time he was time he the Utah Power work- another of Co., 2d P.2d 1. Hewitt v. General Tire & 3 Utah Rubber power by Company evidence) pоsi- to turn the off. verted Light other is that the (cid:127)& Light by picked up each instance Utah Power & tion of the the In the bucket when complied request. The Company the with boom would be 10 to 12 feet of the west spot directly telephone num- shows two under At all record further the lines. posted vicinity were times the boom was in the of the of defendant’s offices bers wires and go to wire property Mountain States one side of the of necessary to the other making requests it was be used for to lower the to boom. power. This occurred as often several as to turn off day. times a 6, 1956, Seрtember m. on the At a. 7:00 prior p. Septem- to Some time 5 :30 onm. States Construction 6, 1956, ber Shook was directed take a to cement on the south side of pour started request truck and the operating engineer to pouring method of was the dam. put the the body bucket of crane on the n acrane placed boom a 55-foot at with spot (dis- truck. He into the backed approxi- damsite corner southern puted) day. truck had used all Ira of the dam. feet east Whit- mately 20 operator placed raised the bucket and it on operator’s helper, estimated ney, crane truck, and in so doing cable of the lines was 50 feet west crane either boom contacted or came close to so n operator, Thompson, crane es- Warren electricity the hot wire as cause the feet west crane was 30 timated truck, contacting killing Shook, arc who ready-mix ce- loaded lines. Trucks standing at the side truck. an area northeast backed into ment n craneand Waldren, project Kay engineer Loren into half- dеposited the cement States Compa- the Mountain placed ground yard bucket ny, parked days that three or four prior testified The trucks were of the trucks. rear requested by of accident he part to date tele- facing northeast so angle (cid:127)at phone Light the Utah Power & probably be the wire under truck would de-energize the lines and one answer- disputed fact). the truck (this After phone bucket, said Utah Power ing into the ready mix unloaded the bucket, Company do so. refused up The Utah picked filled cement сrane *4 denies any such west and swung the bucket to the then made their phone call was witness Then tes- dropped cement on the the damsite. by requests all made the tified the swung back eastward toward boom the power turn line and de- States off the and toward truck granted. plaintiff Both the been ground orig- in its bucket posited the fully were aware of (contro- and the defendant position. Plaintiff’s inal 282 area, proximity Only if
construction affirmed. is no to both answer questions should the wires the nature lower court re- to the damsite and types knеw versed. After a equipment of Both careful review of the rec- being used. August, question ord we that all of conclude answer to one at times after the 1st 1956, con- is question no and the answer to there were three cranes two feet yes. 40 65, struction 45 and area with booms 12,500 long. Both carried knew wires holding Our reasons for so are 7,200 ground volts volts to hereinafter set out. This is an action based they high; were at feet least 30 alleged legal A tort wrong tort. pole least 6 feet so of was buried by against person committed one approximately
wire including sag would be property of It is another. the violation of pole 23 ground. feet above the 45-foot One duty imposed by Three law. elements of 14 to placed was which was stream every tort (1) action are existence of a le provid- 15 feet This lower than the bank. gal duty plaintiff; (2) from defendant of ed a maximum the bed clearance over duty; breach (3) proximate of that damage as a 39 feet. may by ult.2 res It arise the violation granted a On this court record lower duty given in a transaction, or mоtion for a directed verdict for the invasion public duty by of some which dam jury. fendant and took the from the ages accrue to the individual.3 appeal major ques- raises two Plaintiff’s The defendant in this case was tions : engaged public utility as a furnishing in refus- the trial court correct 1. Was electric large number of cus submit the of defendant’s al- ing to issue persons tomers. was It furnished various jury? negligence to the leged under peculiar different and circumstances. trial court correct in decid- 2. Was required In all cases it is exercise the sole' cause of the ing that degree of person care that a ordinary neg- R. Fred death Jr. prudence would under the circumstances. employees the Moun- of certain ligence is well known that one dealing with Company?
tain States
electricity deals with a force
dangerous
yes
answer is
to either or both of
If the
character and that there is a constant risk
then the trial court
questions,
injury
persons
should be
or property if 207,
3. Hayes
Miller, 4
v.
W.W.Harr.
34
2. Diver
v.
Mut.
Massachusetts
Life Insur
A,
City
207,
291;
Co.,
626,
of Mobile
322,
Del.
ance
125 Ill.
18 N.E.
,
303;
City
McClure, 221 Ala.
Angeles,
283 high dеgree cise a of care to maintain its observed The care properly controlled. way in condition in such a propor wires such with must be commensurate of high degree A Therefore, as to avoid accidents. the de danger. tionate to the foresight required the char is because of meet a obliged to company was fendant electricity it acter and behavior of which care, greater high standard of its knowledge of sells. The defendant’s depending another some cases than of is suppоsedly superior service to This rendered. exigency of the service electricity.6 the users of the R. Fred duty defendant owed to death his and before at the time of Jr. Having duty of generally determined employed he was and while when defendant, inquire as wheth- we next to duty to vicinity Its wires.4 of defendant’s duty. er there has been a violation of this discharged been could have accidents avoid by plaintiff It is where contended in (1) following: one of by doing power company knowledge a has of construc wires high tension sulating possibility danger оf and risk which in the raising these wires (2) or zone tion by high result reason with contact safety or point to a zone construction independent tension wires that there off, off, turn tops cut using to hot by (3) company continuing duty during the wires high tension its or deaden by to see danger that such is eliminated re employees were they knew time positive inspection continuing of the wires wires, vicinity of the in the work quired to authority to danger zone.7 There equally effective means take other or inspection the effect continuous is not such Obviously it would injury. рrevention required, “that Power Co. must notified he comply these with all required to be changed can conditions before it made 8 any one which would because requirements' liable.” sufficient. would be We danger remove plaintiff It is contended Railr Union v. Pa. in Stone stated
have inspections any fendant failed to make respecting con liability test oad5 the construction area exact to determine particular act flowing from a sequences which it knew or conditions should have duty de It was the act. failure daily. changing known were The record exer- existing however, shows, prior conditions the defendant had under fendant Light Douglas Co., Kentucky-Tennessee & Power Co. Air Craft 251 N.C. 6. Jones v. 4. Ky. 700, 832, Priest, 127 S.W.20 616. 112 257. S.E.2d 277 v. City Railroad, Angeles, Aguirre Pa. Utah of Los Union 32 7. v. 46 Cal. Stone 5. P.2d 2d 299 862. P. 722. 89 Lighting & Power 8. Houston Co. v. Tex., Brooks, S.W.2d complied requests specific south fill reset time have it turned off- pole, power on dif- my raise and turn off I am to rule going wire and-on. convic- * * ferent tions occasions.
It is our conclusion the given Whether the notice was is. obliga question. have the a fact long We have hеld that' *6 facts, keep generally jurors tion to the themselves informed are the sole judges of the proved, witnesses,9 of changing credibility conditions and circumstances. of the of the importance, however, greater weight evidence, Of in this and effect of the and the- had case is defendant the been inferences to be drawn therefrom and in off, off, they and if so did refuse to cut turn determining they these matters ex are to high or the during deaden tension judgment, wires ercise their best their based on employees time the of the еxperience They Mountain States in life. are not bound tO‘ Company required any were may believe all that witness have tes work in the vicinity making they in any- wires tified to nor are bound to believe the fill on They the north may side. witness. believe one witness as- against many many against or as one. As stated in statement of facts Loren Mr. duty While it is the of court to rule on. Kay Waldren testified he had made such the admissibility of evidence and the com request and power had been informed the petency witnesses, questions of pre as to would stated, not be cut As de- off. before ponderance, greater weight of the testi request fendant denied such had been made. mony exclusively and evidence is for the- support In of its action the District Court jury, except particular cases where its. stated: effect exceptions- is declared law. These do not exist A judge gen in this case. is “I think that there is a failure as to erally allowed to withdraw a from the- your [plaintiff’s] preponderance of the jury wherever there is insufficient com evidence that the Utah Power аnd petent, relevant and material evidence to- Light Company had notice to turn off support issue, or where the evidence is day for Septem- the 6th contrary probabilities to all reasonable or- you I ber. think when come to the Where, however, is uncontroverted. there accident, that the Power competent any legally sufficient evi request, entitled to a and the support plaintiff’s dence to case, States Construction has to a mo do they And needed request it. tion for a verdict, directed irresрective of Lundberg,
9. Gittens v.
10. 31
Pike
American
11.
1,
dent injury. and resultant intervening interrupts later act
In Hillyard By-products Co. sequence natural of events cuts case14 we held: legal off the effect of the negligence of initial actor but if conduct of later seрarate neg-
“More than one act of intervening actor is such neg- that he ligence, though hap- even they do not ligently fails to observe dangerous pen simultaneously, may * * * it causes of condition until injury. too it, When late to avoid *8 does pre- one an act omits to take a question whether later intervening act 12. Godfrey 166, Vinson, Ballagh v. 215 Ala. 110 So. 13. v. Interstate Business Men’s 13, 16; Madden, Wyo. 1, Ass’n, Lemos v. 28 110, 200 241, 176 Iowa 155 N.W. 157 P. 791. 726, L.R.A.1917A, N.W. 1050. Hillyard By-Products 14. Co., 1953, v. Utah 143, 1 Utah P.2d 2d 263 287.
287 requests, complied supersedes casions had such actor negligence of initial then ques- and in such event it wоuld be jury.” is for
tion if jury fact for the determine at the Examining facts of the their handling dropping cement of bucket the bar light case, observe supersede we would the of initial Company actor, Mountain States Construction Utah Light Company. Power & the knew live were involved wires Compa- If Construction Mountain States time the south pouring cement on, ny not known that had tes September 5, side Mr. Waldren 1956. consequences legal would have been en- tified not had he been told alone, tirely This fact under different. Pow Thus, cut Utah though off. even Hillyard сase, would have been sufficient cre er Light negligently & Company had jury question. to have made it a situation, negligently dangerous ated a repeatedly efforts have been Strenuous condition continued to maintain such a modify have us reverse or at least made to Mountain refusing power, to cut off the particularly Hillyard case, as it has have did Company States Construction proxi- with the determination when failed knowledge of such condition question. It jury mate cause becomes has con On the impending avoid the disaster. im- argued that this case vigorously been trary Construction the Mountain States burden poses a severe and unreasonable Company put the actions into motion grave in- upon plaintiff, and works created the accident. person. injured justice upon innocent Mountain States Construction stopped injured person often un dangerous condition to observe a failed feasor responsible tort holding joint one the Moun In fact too late to avoid it. til Re- against while other. prevailing Company knew tain Construction States have con- many efforts gardless of these we Utah days. If the four the condition for Hillyard upheld sistently decision in the our informed Company had Light & Power case.15 States support rul- of its The District Court thereby shut off and power would be addressing plaintiff ing said: Compa the Mountain States cut it had been ny reason to believe up pull hill in this “You have upon Utah relying the fact challenge You I off and have it. case. Mountain States Construc- previous oc- believe 45, v. Cedar City, Underwood, 12 Utah 2d 361 P.2d 9 Utah 2d McMurdie 15. Chase, 711; McJunkin v. P.2d 346 Nyman 490; P.2d 2d *9 tion was Company negligent which this was issue is sufficiently to fur- substantial nish sole cause.” a finding reasonable basis for a plaintiff’s favor. I judge wonder if the trial particular signifi- While we attach no did not use the “preponderance term pull, we difficulty plaintiff’s cance to the evidence” inadvertently, in- intending to n own hold, plaintiff’s believe and so dicate a lack of sufficient substantial evi- evidence, negli- that a as matter of law dence from which jury could reason- gence of Mountain States Construction ably plaintiff’s find in trial Had the favor. Company as out was the hereinbefore set judge intended, stated, so probably as he sole So accident. cause of the since he heard and observed the witnesses holding, judgment Court of the District and was in a position better to determine respondent. is affirmed. Costs to
their credibility are, than in view we of the very nature of the evidence doubtful CALLISTER, and Mc- CROCKETT issue, this agree I would not hesitate DONOUGH, JJ., concur. Company that as a matter of law the Power was finding entitled to on this a in its favor WADE, (concurring Chief Justice issue. part). (cid:127)dissenting question hasty plaintiff’s sug- A glance I concur on the first determined evidence opinion prevailing grounds gests finding that a that the Power Com- stated, subject following com- pany requested by therein to the had refused when Company power ments : to turn the only evi- unreasonable. The off would be judge directing The trial a verdict plaintiff’s on this issue dence in favor plaintiff indicated his doubt .against testimony of the Con- the uncorroborated preponderance showed that evidence foreman, Company’s an interested struction Company had been the Power testimony positively This witness. power operation. for off I turn the Company’s witnesses. by the Power nied prevailing opinion with agree undisputed with is also inconsistent preponderance was a there of the whether gone evidence that the question jury this issue is a lengths cooperate with the Con- great justify a directed verdict. A di- (cid:127)does safety for the struction on this issue jus- verdict would rected project. employees on this The Power losing party where the only fails to tified changed Company had the line evidence that so that the substantial there is show be turned off finding could and on basis in his fa- when a reasonable However, necessary, gone I doubt that the evidence on it had to the -vor. trouble pole original reasonably in the center of power line tort-feasor an- placing ticipate shut danger, intervening and had an- negligence” to avoid the river bed request of other.2 previously at the In power off the McMurdie there was rule; Company. no disagreement No reason on the above stated why suggested disagreement the Power whatever is even was on the instructions uncooperative in given become attempted apply rule refuse to shut the to the presented. this instance and facts agree there I *10 danger which would Hillyard By- off in view of rule of v. Utah I do not understand thereby case,3 be Products Company created. that under the fact that an interested wit- facts shown, that the mere there reasonably “it is not highly fact which is be ness, to a foreseen expected who testifies nor that one ac- who tually position, in view of to his cognizant favorable becomes dangerous of a contrary, furnishes strong ample evidence condition in injury time to avert ef- finding to that for a a basis will Hillyard reasonable so.” fail do case also that the recognized to conclude fect. I am inclined So as the determining factor the for a basis question reasonable shows no original whether the tort-feasor this issue. plaintiff’s on finding favor reasonably in could foresee danger he had correct, trial course, then the if this is Of created in determining whether his negli- against vеrdict directing a judge’s action in gence was a contributing proximate cause by supported the evidence plaintiff is case, accident. In that a car was in favor of case would terminate the driven into the rear of a large parked truck Company. Power street, killing a passenger in the car. aIn suit the heirs of the passenger to in question determined the second As to damages recover for his death from the dissent, adhering opinion, I prevailing owner, truck the determining question was opinion in McMurdie v. my dissenting whethеr the car actually driver saw or pointed case I out In that Underwood.1 could not fail to parked see the truck in negligence tort-feasor’s original “that time to avoid the accident. Answering that proximate cause of in- contributing is a question negative, we held that there jointly resulting original from the juries jury question was a negli- whether the gence of the truck person parking driver in of a third if the passive negligence 791; Oaperon opinion 475, dissenting Tuttle, my 243 v. in P. 100 1. McMurdie See 476, 402, Underwood, 116 P.2d 400, 135 9 Utah 2d A.L.R. 1399. 346 P.2d v. 711, 714. By-Products 3. Hillyard Co., 1953, v. Utah Knight Wessler, 354, v. 67 Utah 2. See 248 P.2d 2d 1 Utah 132; Ogden City, P. Hollow 66 Utah In this the fact that the Construc- contributing proximate cause was a truck a live knew there was tion that death, the verdict affirmed and we especially if the neighborhood, in facts wire against Under the truck owner. the Pow- Company knew that decision Construction presented that agree there I elec- Company had turn the truck er refused to large that person parks who so, thereby tricity that reasonably foresee off when the highway cannot serious, driv- indicating danger if the that the was not a car will be into its rear driven opinion time my not indicate to the parked er truck of the car sees the the Construction Power to avoid the accident. its Company would discontinue construction Here, different very the facts are thereby foresee- eliminate the work and Hillyard rule the facts case. ability of this accident. negligent person does a static who if the very me it seems To clear act reasonably that such foresee act cannot Company refused to turn the contributing an accident cause of will be a helр requested, but off when it intervening person does the who where the clearly great danger that a foresee only negligence of the static act knew thereby This is es- accident was created. static applicable where the cre- knowledge pecially true in view obvious, so danger ates which is have that the Power must clear, that it will avoided likelihood so *11 hay derricks and other is not unusual it reasonably accident cannot fore- machinery accidentally brought to be high only invoked under This rule those seen. contact with live lines. into applying and in it we must circumstances this should be conclude that So I foreseeability keep mind that is the only plaintiff if we conclude that affirmed test that knowledge standard produce substantial evidence from failed by the intervening static tort- could jury reasonably find that make his negligence can feasor the sole Company was to turn only Otherwise, cause where such off. I think we judgment. reverse original is clear that knowledge it should actor reasonably foresee that such an might HENRIOD, J., occur. did not participate accident herein.