Anderton v. Montgomery, 15980

Decision Date15 February 1980
Docket NumberNo. 15980,15980
Citation607 P.2d 828
PartiesKerby R. ANDERTON, Plaintiff and Appellant, v. Terry MONTGOMERY and Tom Montgomery, dba Vernal Hide & Fur Company, Defendant and Respondents.
CourtUtah Supreme Court

George E. Mangan, Roosevelt, for plaintiff and appellant.

Stephen B. Nebeker and Paul S. Felt, of Ray, Quinney & Nebeker, Salt Lake City, for defendants and respondents.

HALL, Justice:

This appeal is taken from the dismissal of a personal injury action pursued by plaintiff Kerby R. Anderton against defendants Terry and Tom Montgomery, owners and operators of the Vernal Hide and Fur Company.

Defendants' business, located in Vernal, Utah, deals, among other things, in commercial sale of sheet metal. Plaintiff, a part-time welder, visited defendants' place of business on September 26, 1975, for the purpose of purchasing sheet metal for the construction of a metal box. Plaintiff was conducted into defendants' business yard by defendant Terry Montgomery, and shown a display device used to exhibit sheet metal samples. The display consisted of a rack, set on a pipe frame and holding sheet metal samples vertically, such that they could be turned from one side to the other, like the pages of a book. As plaintiff and another individual who had accompanied him began turning through the samples, defendant Terry Montgomery was called away by a telephone call. While plaintiff, assisted by his friend and another employee of defendants, continued to examine the samples on the rack, the right side of the pipe frame supporting the display collapsed, causing the rack bearing the samples to crash down onto plaintiff, driving the pipe through the flesh of his right hip and buttock. The accident resulted in partial, permanent impairment of plaintiff's right hip and leg.

Plaintiff thereupon instituted suit against defendants. At trial, defendants asserted that they had used the display device for some six months without any prior difficulty, but were unable to point to any specific factor which could have been responsible for the frame's collapse. Plaintiff was likewise unable to establish any specific conduct on defendant's part giving rise to the collapse. Consequently, plaintiff requested that the court instruct the jury regarding the doctrine of res ipsa loquitur, which instruction was given, over defendants' objection. Defendants requested an instruction explaining the nature of an "unavoidable accident" under the law, which was also given, over plaintiff's objection. The jury found neither party negligent and plaintiff was therefore denied recovery for his injuries.

Sometime subsequent to the entry of judgment, Mr. Stephen B. Nebeker, counsel for defendants, while preparing for the defense of a separate action involving a company by the name of H & S Trucking, learned that a former owner of that company, one LeRoy Dean Huber, had served on the jury in the instant case. Neither Mr. Nebeker nor Mr. Huber had been aware of their connection in this regard at the time of the former trial; Mr. Huber had denied, on voir dire, any connection or acquaintance with either counsel, and Mr. Nebeker had never dealt with Mr. Huber pursuant to his dealings with H & S Trucking, as Huber had sold his interest therein in 1973, while the litigation involving the services of Mr. Nebeker did not arise until 1974. Mr. Nebeker, however, notified the trial court immediately regarding the relationship thus discovered, whereupon a hearing was held. The trial court ruled that plaintiff's interests had not been prejudiced by reason of the relationship since, at the time of the trial, neither Mr. Nebeker nor Mr. Huber was aware that it existed.

On appeal, plaintiff first claims prejudice by reason of conflict and inconsistency in the jury instructions given by the trial court below. As previously mentioned, plaintiff requested and received instructions relating to the doctrine of res ipsa loquitur, and to its application in the present case. The instructions given were as follows:

Instruction No. 4

Our law recognizes a doctrine known as res ipsa loquitur which means: The thing speaks for itself. By reason of it, under certain circumstances, one who is injured may hold another responsible without showing the exact conduct of the other party that caused or set in motion the act that caused the injury. The doctrine of law may be applied only under special circumstances, they being as follows:

First: That the rack of sheet metal and the stand pipe that broke and collapsed upon the plaintiff, Kerby Anderton, which proximately caused the injury to him, was in the possession and exclusive control of the defendants Terry Montgomery and Tom Montgomery at the time the cause of injury was set in motion and that it appears that the injury resulted from some act or omission incident to the manner in which the defendants maintained or constructed or exercised due care in the use of the said rack of sheet metal. This does not mean that defendants had to be present at the time of the injury or that the plaintiff could not be engaged in assisting the defendants agents in locating the desired piece of sheet metal.

Second: That the incident was one of such nature as does not or would not have happened in the ordinary course of things, if those who have control of or are responsible for the rack of sheet metal, use ordinary care.

Third: That the circumstances surrounding the causing of the occurrence were such that the plaintiff is not in a position to know what specific conduct or act or omission or failure to act, was the cause, whereas the defendants, being those in charge of their yard and the rack of sheet metal, may be reasonably expected to know, and thus to be able to explain their lack of negligence. (See Sanone v. J. C. Penny (sic) Company, 17 Utah 2d 46, 404 P.2d 248).

If you find all of the above conditions to exist, they may give rise to an inference by you that the defendants were negligent, which inference will support a verdict for the plaintiff, in the absence of evidence of non-negligence on the part of the defendants.

Instruction No. 4a

If you find from a preponderance of the evidence that the sheet metal which collapsed on Kerby Anderton when the stand pipe holding the same broke, was in the possession and exclusive control of the defendants, as I have explained the same to you; and, if you further find that the incident causing such an injury is of such a nature as . . . would (not) have happened in the ordinary course of events if the rack of sheet metal had been properly constructed and or maintained; and, if you shall further find that the plaintiff is not in a position to know what was the specific reason for the breaking of the stand pipe and the collapse of the sheet metal, whereas the defendants as the possessors of said yard, and have the exclusive right to the control of the same, may be reasonably expected to know the reason for the same, and to thus explain their lack of negligence; then upon your making such findings, there arises an inference that the proximate cause of the occurrence was some negligent conduct on the part of the defendants. The inference is a form of evidence, and if there is none other tending to overcome it, or if the inference, to your minds, preponderates over contrary evidence, it would warrant a verdict for the plaintiff. Therefore, you should consider this inference together with all of the other evidence in the case in determining your verdict.

Defendants, over plaintiff's objection, secured the submission of an instruction relating to causation, which read as follows:

Instruction No. 17

You are instructed that where the precise cause of an accident on the whole evidence is left to conjecture or speculation, and may be as reasonably attributed to causes over one or more of which the defendants has no control, as to a cause for which the defendants would be responsible, then, and in that event, there has been a failure in the required burden of proof. If you find from the evidence in this case that it is just as likely that the accident resulted from causes beyond the control of defendants as from negligence or fault, then the burden of proof as against such defendants have not been met, and such defendants are entitled to your verdict in their favor, no cause of action.

Defendants likewise requested and secured (again over plaintiff's objection) the reading of an instruction relating to the doctrine of "unavoidable or inevitable accident." The instruction stated that,

Instruction No. 19

In law we recognize what we term as unavoidable or inevitable accidents. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been proximately caused by negligence. Even if such an accident could have been avoided by the exercise of exceptional foresight, skill or caution, still no one may be held liable for injuries resulting from it. Both negligence and proximate cause, as defined in these instructions, are requisites for (finding) liability. If you find from the evidence in this case that the accident occurred without negligence on the part of defendants or was not proximately caused by any negligence on the part of defendants, you should answer interrogatory No. 3 "No".

It is plaintiff's contention that instructions 17 and 19 conflict with and contradict instructions 4 and 4a, dealing with res ipsa loquitur, in that they suggest the incumbency, upon plaintiff, of producing evidence of specific acts of negligence on the part of defendants, where res ipsa loquitur specifically obviates the necessity of doing so, permitting plaintiff to establish negligence on defendants' part by inference drawn from circumstantial evidence.

Turning first to plaintiff's contention that instruction 17 was inconsistent with the application of res ipsa loquitur, we note that he correctly characterizes the...

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