Furkovich v. Bingham Coal & Lumber Co.

• Decision Date: 14 August 1914
• Docket Number: 2593
• Citation: 143 P. 121,45 Utah 89
• Parties: FURKOVICH v. BINGHAM COAL & LUMBER CO. [1]
• Court: Utah Supreme Court

143 P. 121

45 Utah 89

FURKOVICH v. BINGHAM COAL & LUMBER CO. ^[1]

No. 2593

Supreme Court of Utah

August 14, 1914

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Joe Furkovich against the Bingham Coal & Lumber Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Dan B Shields and Snyder & Snyder for appellant.

Willard Hanson for respondent.

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

OPINION

FRICK, J.

This was an action in tort to recover damages for personal injuries. The plaintiff, respondent in this court, after alleging the necessary matters of inducement in his complaint, in substance, alleged, that on September 12, 1912 the defendant, appellant here, negligently and carelessly unloaded a wagon of coal on a "steep mountain side," and carelessly and negligently failed and omitted to place any safeguards or barriers to prevent said coal from "rolling down said steep mountain side," and carelessly and negligently omitted taking any other precautions to keep said coal from rolling down said mountain side; that in unloading said coal it was so carelessly and negligently done that a piece thereof "rolled and bounded down said mountain side," struck the plaintiff, who lived down the mountain side and in the vicinity where the coal was being unloaded, severely injuring him. The appellant in its answer admitted "that it was engaged in unloading coal at the time and place stated in the complaint, and that the plaintiff lived in the vicinity where said coal was being unloaded." It was also admitted in the answer "that the hillside below where said coal was unloaded is steep, but (appellant) alleges that the place where said coal was unloaded is a flat place, due to a widening of the grade of the wagon road at said point, and the unloading of coal at said point in the way it was being done was not obviously or inherently dangerous." It was further admitted that said coal was "unloaded by shoveling the same out of the wagon in which it was contained" onto the ground. Appellant denied all acts of negligence, and pleaded contributory negligence on the part of respondent. Upon these issues a trial to a jury resulted in a verdict and judgment in favor of respondent. The appellant has preserved all the evidence adduced at the trial in a proper bill of exceptions, and, among other things, now insists that the evidence is not sufficient to sustain the verdict and judgment.

The evidence produced on behalf of respondent at the trial is, substantially, as follows: That on September 12, 1912, respondent lived with his wife in a small house in what is called a gulch in Bingham Canyon, about 200 feet distant, and down a steep incline from the point where the load of coal mentioned in the pleadings was being unloaded by one Davis, an employe of the appellant; that the coal was being unloaded at a place where appellant and others had frequently before unloaded coal for the use of those who lived in the gulch aforesaid, of whom there were quite a number of families who lived there in small houses; that the coal and other things were unloaded at the place aforesaid, for the reason that there was no way to reach the small houses by team and wagon, and hence said coal and other things were usually unloaded, that is delivered, on top of the mountain as aforesaid, and those who purchased coal would get it there and take it down the mountain to their homes. On September 12, 1912, the exact time of day is not disclosed, the respondent and one Sabine were digging a small cellar in the rear of respondent's house. When they were about through, and just after Sabine had left the cellar, he noticed a large piece of coal rolling down the steep incline of the mountain, which incline was shown to be from thirty-six to forty degrees. The coal was coming fast in the direction of respondent, and Sabine shouted to him to get out of the way. Respondent dodged to get out of the way of the lump of coal, but it struck him, grazing his head and striking him on the arm, breaking it. Respondent became unconscious from the blow, and was immediately taken into the house by his wife and Sabine. Sabine and respondent's wife immediately (within five minutes they state) went up the trial to the top of the mountain where the coal was being unloaded and they found Davis in the wagon, in which there still was some coal left. There was what they called a "big pile" unloaded on the ground. Respondent's wife testified that the edge of the pile of coal was about two feet from the margin of the highway or flat place where the coal was being unloaded, that is about two feet from the brink of the steep incline of the mountain. Both Sabine and respondent's wife testified that there was no barrier or protection of any kind placed around the edge of the road where the coal was thrown from the wagon to prevent any pieces from rolling down the mountain side towards the houses in which the people were living in the gulch below. The lump of coal which rolled down the mountain side was produced in court and exhibited to the jury, but its size or shape is not disclosed. The only other evidence produced by the respondent related to the character and extent of his injuries and the damages sustained by him. When respondent rested appellant interposed a motion for a non-suit upon the ground, among others, that respondent had failed to establish negligence on its part. The motion was overruled, after which appellant produced some evidence to the effect that the flat place where the coal was unloaded was larger in extent or area than testified to by respondent's witnesses, and that the coal was further away from the edge or margin of the mountain brink. No explanation was offered respecting the unloading of the coal or how it happened that the piece in question passed beyond the margin of the highway and rolled down the mountain side.

Appellant contends that the court erred in overruling its motion for non-suit. In considering that question it must be remembered that appellant admitted the unloading of the coal in question. While the admission is not couched in that particular form, yet the admission is that it unloaded coal "at the time and place" stated in the complaint and the evidence is clear that no one else unloaded or handled coal at the time and place mentioned; hence the admission is to the effect that appellant unloaded the coal in question. It is admitted, therefore, that appellant unloaded the coal by shoveling it from the wagon onto the ground near the margin of the steep mountain side, and at a place in the vicinity of which there lived a number of families in small houses, which were some 200 feet down the mountain side, and the evidence is not disputed that the incline or slope of the mountain at that point was from thirty-six to forty degrees. If, therefore, any object, such as a stone or a piece of coal of any considerable size, the shape or form of which was round, or nearly so, were thrown to or near the margin, or where it would bound and land so near the margin of the highway on the mountain that by reason of its high specific gravity the force of gravitation would cause it to roll down the incline of the mountain, it in all probability would become a source of danger to any one who might be in its pathway. Every sane person is charged with knowledge respecting the properties of matter and the natural laws of nature. Every person who is handling objects which are affected by the law or force of gravity is charged with the knowledge that if he permits such objects to fall or to be where the force of gravity will cause them to move downward, any one who may be in the pathway of such an object, while in motion, may be injured. If, therefore, a person, where he has a right to be, is injured by such a moving object, he is not required to prove any particular act of negligence on the part of the person in whose care and under whose control the object in question was before the injury occurred, but, under such circumstances, it is sufficient that the injured person prove the facts from which negligence may be inferred. In the case at bar the respondent proved that appellant was...