118 P. 833 | Utah | 1911
Lead Opinion
This is an appeal from a judgment dismissing the action entered after a general demurrer to the complaint had been sustained, and after appellant had elected to stand on his complaint.
The material allegations of the complaint are that on the 26th day of June,- 1909, the respondent Weatherby was the
-.Does the.complaint state a cause of action? It is fundamental that, in order to state a good cause of action ..in any kind of a case, it must be made to appeal* from the face of the complaint, either by direct allegation or by necessary or unavoidable inference from the facts stated,
When the action is in tort, and especially if it is grounded upon negligence, it must also be made to appear from the complaint that the act or omission which constitutes
If a complaint is based upon contract, all that is necessary to state is the making of the contract, the obligation thereby assumed, and the breach. The contract in such a case contains the primary right of the plaintiff. In the
In an action for negligence arising from an excavation or defect in a street which makes the street dangerous or unsafe for travel by those who have a lawful right of passage, it is not enough to state merely that an excavation of certain dimensions has been made in a public highway, that in making it the person negligently failed to place any signs or guards at or near the excavation, and that the plaintiff
It is an axiom of the law that negligence is never presumed, and hence, in an action like the one a.t bar,, it must be affirmatively made to appear: (1) that the interference with a street makes it dangerous or unsafe for, passage;
By the statement that it was the proximate cause we do not mean that it must be alleged in that specific form. What we do mean is that it must be made to appear that the negligence did cause the injuries complained of. Under
We do not wish to be understood as holding that all the essential facts to which we have -referred must necessarily be alleged in direct and positive terms. If sufficient facts are alleged from which the inferences that the place
These rules of pleading are elementary, and it is not deemed necessary to refer to more than a few of the many authorities which could be cited on this subject. In 3 Bates PL, etc., 2244, the rule is stated thus:
“Merely averring a defect and injury is not sufficient, unless tlie latter appears to have been the result of the former.”
It is further said:
“So, if lack of barriers along the side of a walk is tbe neglect, it must be averred that plaintiff would not have-fallen had there been such guards.”
In referring to this doctrine the Supreme Court of Wisconsin, in the case of Bodah v. Town of Deer Creek, 99 Wis. 511, 75 N. W. 76, says:
“As this court has often been called upon to say, the mere breach of a duty which one person owes to another respecting his personal safety and an injury to such other do not constitute actionable negligence. There is still needed the element that the breach of duty in a line of responsible causation was the cause which produced the injury, and the facts in that regard must be alleged in the complaint.”
In City of Logansport v. Kihm, 159 Ind. 70, 64 N. E. 596, it is said:
“While the paragraph describes a specific defect in the street, arid alleges that the accident occurred by reason of that defect, it wholly fails to show that the defect in the street was the proximate cause of the accident and injury.”
“It is left altogether to inference that, if guards had been maintained along the side, she would not have fallen. Under a- number of rulings we think the complaint must be held insufficient.”
If we now apply the rules of pleading as the same are stated above to the allegations of the complaint in this case, how can it be said that the complaint states a good cause of action ? Certainly no one can claim that it is stated in direct terms that the excavation was dangerous. - Let us assume that this fact can properly be inferred from the allegations concerning the place where the excavation was made and the dimensions thereof. After having assumed or inferred the dangerous condition, the question now arises as to whether the condition was such as to require either signs or guards at all times of the day and night. There is no direct allegation that either signs or guards were necessary; but whether they were or not must again be inferred'. In making these inferences we must, however, infer that the respondents were guilty of negligence. While it is true that negligence may be inferred from other facts as a rule of evidence, and such is often done, can it, however, with the same degree of liberality,, be inferred that negligence existed from other facts stated in a pleading ? In other words, when it appears from the pleading, as in the case at bar, that an excavation is being made, that the work is proceeding in the daytime and at the time the plaintiff fell into it, the question at once arises whether from the mere description of the excavation and the place where it is we may infer that it was so dangerous a place as to require the placing of signs or guards in broad daylight. Had the appellant in direct terms alleged that the excavation was dangerous in daytime, then we might infer that signs or guards were necessary, and that a failure to put any constituted negligence. The inference would thus at least be a natural, if not wholly an unavoidable, one. Assuming, how
From this it unavoidably follows that the failure to erect a sign could not have been the cause of appellant’s falling into the excavation for the reason that even though
It is important to keep in mind that an inference in a pleading takes the place of a positive allegation, and hence must naturally and necessarily arise out of some fact or facts positively stated. An inference in a pleading, therefore, is equivalent to a positive statement of an ultimate
It is also contended that the demurrer was properly sustained upon the ground that the facts stated in the complaint show' that the appellant was guilty of negligence which caused or at least materially contributed to the injury complained of.
In view that both associates of the writer are of the opinion that the complaint is not vulnerable upon that ground, their judgment is deferred to. Inasmuch as anything
From what has been said it follows that the judgment of the court below should be affirmed, with costs to respondents. It is so ordered.
Concurrence Opinion
(concurring).
In concur in the judgment. The trial court sustained the general demurrer to the complaint for want of facts. As neither the demurrant was required to set forth in the general demurrer, nor the court in passing on it to state, the particulars wherein the complaint was wanting in facts, we have no means of knowing for what reason the court held the complaint insufficient, except from an inspection of the complaint itself. Counsel have told us that the court held the complaint bad because the averments thereof conclusively show the plaintiff guilty of contributory negligence. But neither the court nor the record tells us that. The coprt having sustained the general demurrer for want of facts in the complaint, the ruling must be upheld if the complaint for any good reason is wanting in essential facts, though the trial court did not give the best- or proper reason for its deficiency in such particular. I think the demurrer was properly sus
Dissenting Opinion
(dissenting).
It is alleged in the complaint that the excavation, which was twenty feet wide and eight feet deep, extended across the entire width of a “certain public sidewalk, part and parcel, of said Washington Avenue, the main thoroughfare of the city of Ogden.” It is also alleged that “defendants had carelessly and negligently failed to erect proper, or any, guards or means to prevent persons passing along said walk from falling into said areaway, and had negligently and carelessly
In 14 Enc. PI. & Pr. 336, the principle is tersely and well illustrated in the following language:
*591 “In an action for negligence it must appear from the complaint or declaration either hy direct averment or from the statement of such facts as to raise the presumption, that the injury was the natural and proximate result of the defendant’s negligence.”
The following autborities are to the same effect: City of Huntington v. Burke, 21 Ind. App. 655, 52 N. E. 415; Wabash County v. Pearson, 120 Ind. 426, 22 N. E. 134, 16 Am. St. Rep. 325; Baltimore, etc., R. Co. v. Kleespies, 39 Ind. App. 151, 76 N. E. 1015, 78 N. E. 252; Holt v. Spokane & P. Ry. Co., 3 Idaho, 703, 35 Pac. 39; Con. Elec. L. & St. R. R. Co. v. Pryor, 44 Fla. 354, 32 South. 797; Evansich, Jr., etc. v. G. C. & S. F. Ry. Co., 57 Tex. 123; San Antonio Ry. Co. v. Cailloutte, 79 Tex. 341, 15 S. W. 390; Dugan v. St. P. & D. R. Co., 40 Minn. 544, 42 N. W. 538; McGehee v. Schiffman, 4 Cal. App. 50, 87 Pac. 290; 3 Suth. Code Pl., Pr. & Forms, sections 4172, 4222.
Counsel for defendants contend with much earnestness that the complaint on its face shows that plaintiff was guilty of contributory negligence, and that the ruling of the trial court sustaining the demurrer to the complaint should be upheld on that ground. The complaint shows that Washington Avenue is the main public thoroughfare of Ogden City, Utah, and that at the time of the accident complained of plaintiff was walking on and along the sidewalk of this public and much used thoroughfare, and while “his attention was otherwise attracted and engaged and he was looking in another direction, and not knowing, or having reason to know, of the existence of said . . . excavation,” fell into it without fault or negligence on his part.
A person walking along -a public sidewalk has a right to presume, and to act upon the presumption, that it contains no pitfalls, and that it is free from dangerous obstructions (Tucker v. Salt Lake City, 10 Utah, 173, 37 Pac. 26), and if he is injured by falling into an excavation, or by coming in contact with some dangerous obstruction thereon the mere fact that his attention at the time was attracted in another direction and momentarily withdrawn from the
“In our opinion there is nothing in the point that respondent was guilty of .contributory negligence. A sidewalk of a street in a city not near .a crossing may be taken by one passing over it to he a safe, and not a dangerous place. In this case the respondent had*593 the right to presume that the sidewalk was in the same condition in which she had always found it; and the fact that her attention was momentarily attracted in another direction — a thing of the most common occurrence to travelers along a street — falls far short of that contributory negligence which in law defeats an action for damages.” (Italics mine.)
In 7 A. & E. Enc. L. (2d Ed.), 411, it is said:
“A traveler upon a street or highway has .a right to depend upon the performance of this duty (the duty of keeping streets and highways reasonably safe for public travel) without special investigation, and if injured by defects thereon of which he has no notice, while traveling along the street in an ordinary manner, and relying upon the performance of duty by the municipality, he is not guilty of contributory negligence.”
In the case of Tucker v. Salt Lake City, supra, tbis court said:
“All persons using the street and sidewalks have the right to assume that they are in good and safe condition, and to regulate their conduct on that assumption.”
In the case of Dwyer v. Salt Lake City, 19 Utah, 521, 57 Pac. 535, this court said:
“Although the respondent had previous knowledge of the condition of the sidewalk and embankments, and undertook to cross the embankment on a dark night and momentarily forgot about it yet such knowledge, undertaking, and forgetfulness were not conclusive evidence of such contributory negligence as would bar a recovery.”
The principle aunouuced iu tbat case was reaffirmed by tbis court in the case of Bowman v. Ogden City, 33 Utah, 198, 93 Pac. 561, and again in the case of Bills v. Salt Lake City, 37 Utah, 507, 109 Pac. 745. Jennings v. Van Schaick, 108 N. Y. 530, 15 N. E. 424, 2 Am. St. Rep. 459, was a case in wbicb the plaintiff fell into an open coal bole left uncovered and unprotected in a crowded city street. the court said:
“She had a right to assume the safety of the sidewalk, and so was not called upon to give attention to her steps, until in some manner warned of danger. Undoubtedly she knew that vaults and*594 coal chutes were common under and adjoining the sidewalks, and that through the ordinary openings coal was deposited in such vaults. But she had a right to assume that they were securely covered, or, if left open, were guarded hy some one to give warning, or by the crib or box prescribed by the city ordinance.’-
In a later case tbe same court (Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 Am. St. Rep. 442) said:
“A person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the daytime or nighttime, relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel have performed that duty, and that he is exposed to no danger from its neglect.”
The case of City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271, contains tbe following clear and concise statement of tbe rule:
“A person passing along a sidewalk in a oity is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of each particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in search for possible holes or other defects would be to establish a manifestly unreasonable and wholly impracticable rule.” (Italics mine.)
The same general principle is announced and followed in tbe following eases: Topeka Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 878, 39 L. R. A. 90; City of Houston v. Isaaks, 68 Tex. 116, 3 S. W. 693; Brown v. Stevens et al., 136 Mich. 311, 99 N. W. 12. Under tbe doctrine declared by tbe foregoing authorities, which is tbe settled law of this state, I am clearly of tbe opinion that tbe facts pleaded in this case did not warrant tbe court in bolding that tbe plaintiff was negligent, and that such negligence contributed to tbe accident.
Counsel for defendants contend that if a person passing along a sidewalk of a populous «city in tbe daytime, and
