Hamblin v. Mountain States Telephone & Telegraph Co.

• Decision Date: 22 October 1959
• Docket Number: No. 6096.,6096.
• Citation: 271 F.2d 562
• Parties: Eugene E. HAMBLIN, Appellant, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

271 F.2d 562 (1959)

Eugene E. HAMBLIN, Appellant, v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Appellee.

No. 6096.

United States Court of Appeals Tenth Circuit.

October 22, 1959.

David S. Kunz, Ogden, Utah (Dean N. Clayton and Calvin Gould, Ogden, Utah, on the brief), for appellant.

Grant H. Bagley, Salt Lake City, Utah (Clifford L. Ashton of VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the brief), for appellee.

Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.

LEWIS, Circuit Judge.

Plaintiff-appellant complains of an adverse and summary judgment granted in a negligence action in the United States District Court for the District of Utah. The trial court upon consideration of the pleadings, certain depositions of principal witnesses, and the admissions of the parties made at pre-trial, determined that plaintiff's claim for damages for personal injuries could not be sustained in view of the undisputed facts. The trial court found as a matter of law that the defendant was not guilty of negligence; further and alternatively, that defendant's negligence was not the proximate cause of plaintiff's injuries; finally, that plaintiff was guilty of contributory negligence. The judgment below was premised upon the undisputed factual situation which we summarize.

Defendant is a public utility furnishing communication service throughout Utah and certain surrounding states. As part of its facilities the company had constructed and maintained a guy wire across a public street in the town of Washington Terrace, Utah. The wire served as a brace for two of the company's telephone poles and extended horizontally across the street at a height of 16 feet, eight inches.

On July 31, 1958, plaintiff was riding on the top of a house that was being moved under contract by his employer. As the house approached the defendant's guy wire it became apparent that there was not clearance and that the peak of the house extended several inches above the wire. In order to obtain clearance plaintiff lifted the guy wire up and upon the house and placed it on a board so that wire and board would slide along the ridge of the house roof. The board was intended to provide a sled-like action for the wire. The procedure was successful until all but a few feet of the house had passed under the wire. The wire then snagged, grew extremely taut, and, in an effort to loosen it, plaintiff lifted the wire and was thrown violently to the street below. Counsel liken the final incident to the action of a bow string with a human arrow.

It is most apparent that plaintiff's initial burden in attempting to fix legal blame upon defendant for the tragic results of this accident lies in establishing negligence upon the part of the defendant in maintaining the guy wire at the site and height indicated. To do this plaintiff claims a violation of the regulations of the Public Service Commission of Utah, applicable to defendant as a public utility, and the consequent pertinency of the rule that violation of a lawful statute, ordinance, or regulation designed for the safety of the public constitutes negligence per se. The Supreme Court of Utah states the rule thus:

"* * * When a standard of duty or care is fixed by law or ordinance, and such law or ordinance has reference to the safety of life, limb, or property, then, as a matter of necessity, a violation of such law or

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