Fowler v. Union Portland Cement Co.

• Decision Date: 21 July 1911
• Docket Number: 2177
• Court: Utah Supreme Court
• Parties: FOWLER v. UNION PORTLAND CEMENT COMPANY

117 P. 462

39 Utah 363

FOWLER v. UNION PORTLAND CEMENT COMPANY

No. 2177

Supreme Court of Utah

July 21, 1911

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Action by Mary Fowler against the Union Portland Cement Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

C. S Varian for appellant.

APPELLANT'S POINTS.

Proof of defect in an appliance in itself does not give a right of recovery. It must appear affirmatively that the defect alleged was the proximate cause of the accident, and that the master was chargeable with knowledge of it. (Moriarty v Schwarzschild, 133 Mo.App. 711, 112 S.W. 1034; 1 Labatt, sec. 128; Finn v. Oregon Water Power & Ry Co., 93 P. 690; McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872.)

The rule of res ipsa loquitur is held by a large majority of the courts of this country not to apply in cases between master and servant. (Klide v. Parker Distilling Co., 207 Mo.480, 105 S.W. 1057.)

In this case the conflicting authorities are cited.

Since this court has, by way of dictum at least, declared that there may be cases between master and servant in which the rule may properly be applied, we may not be permitted to invoke the authority of the vast majority of cases imposing the limitation upon the rule.

We are satisfied with the court's statement that--"The maxim, when applicable to the facts and circumstances of a particular case, is not intended to, and does not, dispense with the necessity of establishing negligence." (Christensen v. O. S. L. R. R. Co., 99 P. 676, 35 Utah 137.)

"The action cannot be maintained, if after all the testimony has been put in, it remains doubtful whether the injury resulted from the cause suggested by the master, or from the cause suggested by the servant. As long as there is nothing more tangible to proceed upon them two or more conjectural theories, it is immaterial that the theory which is suggested in the interest of the servant is more probable than that which is suggested in the interest of the master." (2 Labatt, sec. 837, p. 2316; Fritz v. Gas & Elec. Light Co., 18 Utah 493-503; Edgar v. Railroad Co., 32 Utah 330, 338, 339.)

The sum of the whole matter is, that where the evidence of plaintiff is consistent with a hypothesis that the defendant is not negligent, and also with one that he is, plaintiff's proof tends to establish neither. (Ascraft v. Davenport Locomotive Works [Ia.], 126 N.W. 1114; Patten v. T. P. R. R. Co., 179 U.S. 658-663; Ewing v. Goode, 78. Fed. 444; U.S. v. Surety Co., 161 F. 151; Searles v. Manhattan Ry. Co., 101 N.Y. 661; Electric Co. v. Croning, 166 F. 658; Whitehouse v. Bryant Lumber Co., 97 P. 751; C. & N. W. Ry. Co. v. O'Brien, 132 F. 593-7.)

The master does not insure the servant against defects in or break down of his machinery and appliances. (Delaware L. & W. R. Co. v. Royce [C. C. A.], 176 F. 331-332. See, also, McQueen v. Del. L. & W. R. Co., 92 N.Y.S. 585, 102 A.D. 195, and 1 Labatt M. & S., section 136.)

The ordinary test of negligence is whether men of ordinary intelligence and prudence would have done or omitted the act in question under the particular circumstances. (Stone v. R. R. Co., 35 Utah 305-339; Slade v. Beattie, 186 Mass. 267, 71 N.E. 540; 1 Labatt, sec. 442, page 1254; Deaton v. Abrams [Wash.], 110 P. 615; Labatt, supra, 302b, 443-444; Carnegie v. Pa. Bridge Co., 197 Pa. 441, 47 A. 355; Kilroy v. Foss, 161 Mass. 138, 36 N.E. 746; Miller v. Moran Bros. Co., 39 Wash. 631, 81 P. 1089-1091.)

Evans & Evans for respondent.

RESPONDENT'S POINTS.

The record does not contain all of the evidence. Therefore this court will not review any assignment of error based upon the alleged insufficiency of the evidence. Carter v. Cummings-Nielsen Co., 34 Utah 315; Olsen v. C. S. L. R. R. Co., 24 Utah 450; Crooks v. Harmon, 29 Utah 304; Hanaan Bros. v. Waltenspeil, 29 Utah 466; Stone v. Ogden Packing Co., 30 Utah 460; Bowman v. Ogden City, 33 Utah 196.)

The master may be guilty of negligence in adopting a mode of work not reasonably safe, although it is in accordance with custom. 12 Current Law 713; Vottman v. MacMullen, 138 Ill.App. 616.

It is not only necessary for plaintiff to establish a reasonable probability. It is not necessary to conclusively negative every other hypothesis. (Wabash Screen Door Co. v. Black, 126 F. 721; Western Travelers' Assn. v. Holbrook, 91 N.W. 276. See, also, 1 Greenleaf on Evidence [13th Ed.], sec. 13a; Schopper v. Hancock Chemical Co. [Mich.], 71 N.W. 1081; Edgar v. Railroad Co., 32 Utah 330; Benedick v. Potts, 88 Mo. 52, 40 A. 1067, 41 L. R. A. 478; Cleave v. Parker Distilling Co., 207 Mo. 489, 105 S.W. 1057.

The master is responsible for the acts of his agents and servants, 1 Thompson on Negligence, sec. 518.

Question of contributory negligence is for the jury. Smith v. Ogden & N. W. R. R. Co., 33 Utah 129; Hickey v. Rio Grande W. Ry. Co.. 29 Utah 392; Merril v. O. S. L. R. R. Co., 29 Utah 264; Christiansen v. C. S. R. R. Co., 29 Utah 193.

McCARTY, J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

Plaintiff brought this action to recover damages from the defendant for the death of her husband, Ira A. Fowler, which resulted from injuries received February 24, 1909, through the falling of a steel truss which he and other employees of defendant were attempting to put in place at defendant's cement plant near Devil's Slide, Morgan County, Utah. The truss referred to weighed about 4000 pounds, and at the time of the accident was being raised by means of a derrick over and upon which was operated the ordinary block and tackle, consisting of pulleys and wire cable. The upright pole or mast of the derrick was about sixty feet high, and was held in place by guy wires. The height of the arm, or boom, of the derrick from the ground was about forty-five feet. The wire cable, which was from one-half inch to three fourths of an inch in diameter, wound around a drum which was operated by a stationary engine on the ground. From the drum the cable ran up the mast and along the boom of the derrick connecting with a movable car or carrier and through pulleys forming a block and tackle with hook attached hanging underneath the boom to which weights were attached when being raised. The cable finally passed through a hole at the end of the boom, and was clamped with a clip. This clip, sometimes called a clamp, consisted of a U-bolt and shoe, a filler, and two burs. The burs tighten the clamp upon the cable. The derrick had been erected and the cable put in place three days before the accident. Fowler, the deceased, had worked about the plant between three and four months, but had worked with the iron workers' gang at this particular job only a few days. He was a steady, reliable workman, but not a structural iron worker. He was one of a gang of workmen who one or two days before the accident raised and put up, with the appliances mentioned, another truss, leaving two trusses on the ground. It was one of these--the second truss that was raised--that fell. The truss was raised to a height of seventeen feet, and was suspended by the wire cable, the attached end of which slipped away from its fastenings, and the truss fell to the ground, killing Fowler almost instantly.

It is alleged, among other things in the complaint "that, in order to raise said steel trusses or beams by means of the said derrick and wire cable, it was necessary to securely attach the end of said wire cable to prevent the same from breaking or slipping away; and it was the duty of defendant company at the time herein mentioned to firmly and securely fasten the said wire cable in such a way as to prevent its breaking or pulling away while being used." It is further alleged "that the said defendant did not use due care in securing said wire cable, and negligently and carelessly failed to use ordinarily safe and suitable methods to secure the same, and negligently failed to use a suitable, adequate, or proper wire rope clip, or a sufficient number thereof, or to properly adjust and fasten the same, or to use any suitable or safe contrivances to secure said cable, and that said defendant knew, or by the exercise of ordinary care, could have known, that the said fastening was dangerous and insecure." Defendant denied that it failed to exercise ordinary care, and that it knew, or in the exercise of ordinary care could have known, that the fastening on the cable was dangerous and insecure. It alleged that the appliances used were in ordinary and general use, and that they were carefully inspected, and that defendant had no notice or knowledge of any defect, if any there was, and specially pleaded contributory negligence on the part of Fowler in unnecessarily putting himself underneath the truss and derrick.

The principal grounds upon which defendant relies for a reversal of the judgment are: (1) " Insufficiency of the evidence to justify the submission to the jury of the question of negligence on the part of the defendant; (2) that the contributory negligence of plaintiff's intestate was fully shown by the evidence, and the verdict should have been directed for defendant."

We will first determine whether the evidence was sufficient to justify the submission of the case to the jury on the question of whether or not the defendant was negligent. The record shows that the end of the cable was fastened by one of the defendant's employees, a Mr. Wagner, who was a skilled and competent structural iron worker, in the following manner: He passed the cable through a hole in the spreader at the outer end of the boom from which the cable passed out between two angle irons horizontally fastened to the timbers which formed the boom, and, as a means of holding the cable and...