Fritz v. Western Union Tel. Co.

• Citation: 25 Utah 263,71 P. 209
• Decision Date: 15 January 1903
• Docket Number: 1387
• Court: Utah Supreme Court
• Parties: MARY FRITZ, as Administratrix of the Estate of GEO. W. SILKETT, Deceased, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, and THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellants

71 P. 209

25 Utah 263

MARY FRITZ, as Administratrix of the Estate of GEO. W. SILKETT, Deceased, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, a Corporation, and THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellants

No. 1387

Supreme Court of Utah

January 15, 1903

Appeal from the Third District Court, Salt Lake County.-- Hon. C. W Morse, Judge.

Action to recover damages for the wrongful death of the plaintiff's intestate alleged to have been caused by the negligence of the defendants. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

Messrs Bennett, Sutherland, Van Cott & Allison for appellant, The Rio Grande Western Railway Company.

The testimony of experts is inadmissible upon a matter concerning which, with the same knowledge of the facts, the opinion of anyone else would have as much weight. It is only admissible when the facts to be determined are obscure, and can only be made clear by and through the opinions of persons skilled in relation to the subject-matter of inquiry. Rogers Ex. Test sec. 8; Lawson Ex. and Op. Ev., 238 et seq.; Glass Co. v. Lovell, 7 Cush. (Mass.) 319.

The test of the admissibility of expert evidence is not whether the subject-matter is common or uncommon, nor whether the witness can claim superior judgment or powers of reasoning, or better comprehends and appreciates the matter at issue, but the test is whether the question upon which the evidence is offered is one of science or skill. 12 Am. and Eng. Enc. of Law, 423; Taylor v. Monroe, 43 Conn. 36; State v. Watson, 65 Me. 74; Glass Co. v. Lovell, 7 Cush. (Mass.) 319; Chicago v. McGiven, 78 Ill. 347.

In order to make a custom obligatory, it must be so ancient as to be generally known, certain, uniform and reasonable. Collins v. Hope, F. Cas. No. 3003; West v. Ball, 12 Ala. 340; Nelson v. Southern P. Co., 15 Utah 329; Hall v. Storrs, 7 Wis. 253; Steele v. McTyers, Admin., 70 Am. Dec. 516; Savage v. Pelton, 27 P. 948; 2 Greenl. Ev., sec. 251; Sturges v. Buckley, 32 Conn. 18; Dixon v. Dunham, 14 Ill. 324; Caldwell v. Dawson, 61 Ky. 121; Porter v. Hills, 114 Mass. 106; Stewart v. Scudder, 24 N. J. Law 96; Miller v. Burke, 68 N.Y. 615; Walker v. Borm, 6 Minn. 508.

To establish a custom it is not enough to prove that the act has been frequently done. It must be shown to be so generally known and recognized that a fair presumption arises that the parties, in entering into their engagements, do it with a silent reference to the custom, and tacitly agree that their rights and responsibilities shall be determined by it. The Paragon, F. Cas. No. 10708; Citizens' Bank v. Grafflin, 31 Md. 507; Ins. Co. v. Stanton, 10 Miss. 340; Martin v. Hall, 26 Mo. 386; Duguid v. Edwards, 50 Barb 288; Fletcher v. Teekell, 1 R. I. 267.

The custom, even if it existed, was unreasonable and therefore void. It was said by this court in the case of Nelson v. Southern Pacific Co., 15 Utah 331, that to establish the validity of a custom it must be shown to be reasonable. And it is the universal rule that customs and usages are not valid unless they are reasonable. Leach v. Perkins, 17 Me. 462; s. c., 35 Am. Dec. 268; Strong v. R. Co., 15 Mich. 206; s. c., 93 Am. Dec. 184; Duguid v. Edwards, 50 Barb. 288; McMasters v. R. Co., 69 Pa. 374.

And the reasonableness, validity and effect of a custom are questions of law for the court. Sullivan v. Jernigan, 21 Fla. 264; Chicago, etc., Co. v. Tilton, 87 Ill. 547; Milroy v. Ry. Co., 98 Iowa 188; s. c., 67 N.W. 276; Bodfish v. Fox, 23 Me. 90; s. c., 39 Am. Dec. 611; Bourke v. James, 4 Mich. 336.

A custom establishing a hard and fast rule that in doing such work there must be a man on each pole, only one wire strung at a time, and a foreman always present, is unreasonable and void. Reed v. Richardson, 98 Mass. 216; Nolte v. Hill, 36 Ohio St. 186; Jacobs v. Shorey, 97 Am. Dec. 586; Simonds v. Baraboo, 93 Wis. 40; s. c., 57 Am. St. Rep. 895; Stoney v. Trousp Co., 17 Hun. 579; Redfield v. Ry. Co., 112 Cal. 220, 224.

The customs sought to be proved were local, and confined to one particular business. They were not claimed to be general and of universal application. Being a purely local custom of a particular place and confined to a particular business, it can be operative only in respect to those persons who are shown to have knowledge of it. Marshall v. Perry, 67 Me. 78; Chalearegay, etc., Co. v. Blake, 144 U.S. 476; Rindskoff v. Barrett, 14 Iowa 101; Higgins v. Moore, 34 N.Y. 425; Sawtelle v. Drew, 122 Mass. 228; Isaksson v. Williams, 26 F. 642; Flatt v. Osborne, 33 Minn. 98; Johnson v. Gilfallin, 8 Minn. 352; Leonard v. People, 30 Ga. 61; City Bank v. Cutter, 20 Mass. 414; Byrne' v. Packing Co., 137 Mass. 313; Hutchings v. Todd, 16 Mich. 493; Fitzgerald v. Hanson, 16 Mont. 474.

Lindsay R. Rogers, Esq., for appellant, The Western Union Telegraph Company; George H. Fearons, Esq., of counsel.

Messrs. Powers, Straup & Lippman for respondent.

ROLAPP District Judge, delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

ROLAPP, District Judge

STATEMENT OF FACTS.

On October 27, 1898, and for several months immediately prior thereto, the defendants, the Western Union Telegraph Company and the Rio Grande Western Railway Company, were engaged in constructing a telegraph line between Park City and Salt Lake City, along the line of the Rio Grande Western railroad track. The work of erecting the line had been proceeding for about four months, and George Silkett, the deceased, had been in the employ of the defendants as a groundman during all of that time. On October 27, 1898, the day of Silkett's death, the constructing had progressed to a point at Sugar in Salt Lake county, where the projected line passed over and across the feed wires of the Salt Lake & Ogden Light & Power Company, which wires carried a very heavy voltage of electricity, and where the men, including deceased, were then engaged in stringing telegraph wires. Up to this time nine or ten men had been employed in the gang, including a foreman or an assistant, who had charge of the work and directed the men. There were telegraph and telephone poles standing on each side of the feed wires of the power company at the point where the work was going on; and it was testified that, under such circumstances, it was usual to string only one wire at a time, and to have a lineman on each pole to take up and keep up the slack; also to use rubber gloves for insulators, and a wooden platform for the men to stand on, to insulate them from the ground. None of these things, however, were furnished that day to the men there working. It seems that some of the workmen procured a coil of telegraph wire from a railroad car near by, and placed it in the back of a wagon, whereupon the wagon containing the coil of wire was placed on the west side of the feed wires, with the rear of the wagon facing said feed wires. It then became necessary to uncoil the wire from the reel in the wagon, and stretch the same over the feed wires from the telegraph pole on the west side to the telegraph pole on the east side thereof. There were two coils of telegraph wire on the reel, and by the revolution of the reel the two coils of wire were run out, preparatory to stringing them from pole to pole over the feed wires. A hand line or rope was tied to the ends of the two telegraph wires on the west side of the feed wires. The regular foreman was absent, and one Buchanan, who then directed the men, threw the hand line over the top of the feed wires, and onto the east side thereof. Some of the men picked up this hand line on the east side, and pulled or carried it to the telegraph pole on the east side of the feed wires, preparatory to carrying it up the pole. Buchanan went up a telephone pole on the west side of the feed wires, and put the two telegraph wires, which were being stretched over the top of a cross-arm of the telephone pole, in order to use the cross-arm as a support for the telegraph wires while they were being placed in position. Buchanan then descended the telephone pole on the west side of the feed wires, leaving no one there, and passed over and ascended the telegraph pole on the east side, taking the rope or hand line up the pole with him. After passing over the top of the cross-arm of the telephone pole on the west side, one of the telegraph wires became caught under an insulator on the telegraph pole, which was also on the west side, but nearer the feed wires than the telephone pole. Deceased and one George Arden were on the east side of the ground, near the base of the telegraph pole on top of which Buchanan was stationed, and were engaged in pulling on the hand line to keep the wires tight while they were being stretched. The hand line or lead line also went up over a cross-arm on the telegraph pole on the east side, on the top of which Buchanan was stationed, and from there down to the ground into Arden's hands. Buchanan thereupon told Arden to give a little pull on the rope. At this time deceased was standing by Arden's side, at the foot of the pole. Arden responded with a pull, but one wire was caught on the west side, as above stated, and therefore refused to yield. Buchanan thereupon sent deceased to the west side to release the wire which was caught, saying at the same time: "Go over where Jones is, and get hold of the wires, and let them come east." Deceased proceeded to the west side of the feed wires, and took a position near Jones at the rear end of the wagon. Arden continued to pull on the hand or lead line to keep the wires tight. Jones had already shouted to Buchanan that he would go no further, as he had received a shock which alarmed him. It was in response to this announcement of Jones' that Buchanan...