Jensen v. Logan City

• Decision Date: 19 October 1938
• Docket Number: 5931
• Citation: 96 Utah 53,83 P.2d 311
• Court: Utah Supreme Court
• Parties: JENSEN v. LOGAN CITY et al

83 P.2d 311

96 Utah 53

JENSEN v. LOGAN CITY et al

No. 5931

Supreme Court of Utah

October 19, 1938

Rehearing denied December 19, 1938.

Appeal from District Court, First District, Cache County, O. W McConkie, Judge.

Action by Alfred Jensen against Logan City and another to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

H. A Sjostrom, of Logan, and Homer Holmgren, of Salt Lake City, for appellant.

Leon Fonnesbeck and Young & Bullen, all of Logan, and Bowen & Quinney, of Salt Lake City, for respondents.

FOLLAND Chief Justice. HANSON, J., WOLFE, Justice, concurring. MOFFAT, Justice, LARSON, Justice, dissenting.

OPINION

FOLLAND, Chief Justice.

This case is here on second appeal. The decision on first appeal is to be found in 89 Utah 347, 57 P.2d 708. Reference is hereby made to that case for a detailed statement of the facts. On second trial, the cause was tried by the court sitting without a jury. The trial court made findings of fact, conclusions of law, and entered judgment for the defendants, no cause of action. Appellant assigned eighteen errors and argued them in the brief under six heads: (1) Assignments 5, 8, 9, 10, 11 are directed to insufficiency of the evidence to support portions of Findings of Fact No. 6 and 7; (2) Assignments 12 and 13 are that finding No. 9 is not supported by the evidence; (3) Assignments 6 and 7 are that part of finding No. 6 is not supported by the evidence, and that the refusal of the court to make a contrary finding in harmony with plaintiff's evidence is error; (4) Assignment No. 1 is directed to the court's ruling permitting counsel for Anderson Lumber Company to cross examine a witness called by the other defendant, Logan City; (5) Assignments 2, 3, and 4 raise questions regarding exclusion of offered evidence; (6) Assignments 14 to 18 assign error in making and entering conclusions of law and judgment on the Findings of Fact.

At about eleven-thirty p. m., on March 18, 1933, appellant was walking along the east sidewalk on South Main Street in Logan City when he tripped and fell by his foot being caught in the wire from an adjoining fence and was severely injured by the fall. He brought suit against the abutting property owner Anderson Lumber Company and Logan City. It seems that in the spring of 1933 a group of citizens of Logan organized the Citizens Relief Committee for the purpose of providing work and firewood for unemployed men. The Committee advertised in the local papers for any persons having trees which were not needed to advise the Committee. The Anderson Lumber Company notified the Committee it had such a tree which it would donate for the purposes of the Committee. This tree was just inside a mesh wire fence along the property line. To remove the tree it became necessary to displace part of the wire fence. Mr. Maughan, superintendent of the Logan City electric light department, was an active member of the Citizens Relief Committee. He directed a city employee, J. H. Kent, to supervise the felling of the tree. Kent thereupon went to the premises, loosened the wire from two posts and folded the loosened wire back against the fence standing to the north. He testified he fastened the first, third, and fourth strands securely but that the lower strands were not fastened because of snow then on the ground. Parallel with the fence and three feet therefrom was a cement sidewalk six feet in width. The area between curb and fence line, except the six foot walk, was in parking. The unemployed men were employed by the Citizens Committee to fell the tree and cut it into firewood lengths. The fence was first unfastened early in March and was not restored to its original posts as part of the fence until after the accident on March 18th.

Appellant based his cause of action on the allegation that defendants "folded said net wire back upon itself in such a negligent and careless manner that a part of said net wire where it was folded as aforesaid, projected for a distance of about one foot out, over and upon the paved portion of the said sidewalk, which is one of the public sidewalks of Logan City," etc., and permitted the wire so to remain for about four weeks, and that "its said fence was lying and protruding upon said sidewalk and was obstructing the same and the free use thereof by the public," etc.; that on March 18th at approximately the hour of midnight the plaintiff proceeded along the sidewalk which was "in the said dangerous and hazardous condition as aforesaid and was obstructed as aforesaid * * * and while walking along the regularly used and paved portion of said sidewalk in a lawful, careful and prudent manner, ran into and against said net wire fence which was then and there still projecting out upon the paved portion of said sidewalk," etc.

The testimony of appellant and his companion (who was with him at the time of the accident and injury) was to the same effect, and the court found the fact to be as alleged and proved--that the accident happened on the paved walk. Liability was attempted to be fastened on defendants (1) because they folded the fence back in a careless and negligent manner; and (2) because the wire was out over a portion of the paved walk for a period of time sufficiently long to give constructive notice of the dangerous condition.

Appellant contends there was not sufficient evidence to support the assailed findings of fact, Nos. 6, 7, and 9. In order to determine whether there is evidence to support a finding of the court or a verdict of a jury, we should look to evidence which tends to support such verdict or finding rather than to the contrary. It may be conceded at once that there is evidence inconsistent with or contrary to the facts as found by the trial judge. There is also ample evidence of a very substantial character which furnishes adequate support to each fact found by the court. The rule is well established that it is not for this court in a law case to weigh evidence or determine credibility of witnesses. If there is any substantial evidence in support of a finding, it must be sustained.

We shall merely point out evidence which supports the trial court's findings, and not attempt to argue where the preponderance of evidence lies. That was for the trial court.

Assignment No. 5 takes exception to that part of finding No. 6 as follows: That the wire of the fence was folded back "for a distance of 16 feet along and upon the portion of said fence which was left undisturbed." Assignment No. 8 attacks the portion of finding No. 7 "that the loosened portion of said fence folded back as hereinbefore found was drawn back northerly along the stationary portion of said fence for the same distance from the pivot post, upon which it was folded, as the said loosened portion had extended southward from said pivot post while in its stationary condition."

Appellant urges that these findings are not correct, that they have no support in the evidence and are contrary to the physical facts. It is argued that the exact distance is necessary to sustain Kent's testimony as to the manner in which he fastened the ends of the folded back portion of the fence wire; that "if the loosened fence lacked even an inch of stretching back the full sixteen feet, Kent could not have fastened the wires as he said he did." There is no evidence that anyone placed a surveyor's tape or other measuring instrument on the fence to learn its exact measurement. Throughout the trial witnesses gave their estimate of distance and there was not anything that depended upon exactitude of measurement or precision. The court's findings must be read in the light of the evidence and the issues tried out before the court. Kent testified that he pulled the loosened portion back for sixteen feet against the standing fence, stretched it as tightly as he could with his pliers and fastened the ends on the north side of the post, fastening the first, third, and fourth strands of wire around the top strand, third, and fourth wires respectively of the fence. He testified that he could not fasten the lower strands because of snow and that the lower portion of the wire would be out between six and eight inches at the post. He is corroborated by Ross Anderson, of the Anderson Lumber Company, who testified that:

"A. I arrived soon after the fence was bent back to permit them to cut the tree down, and the fence was folded back and fastened along the front of the remaining fence.

"Q. How far back did it reach from the post, that is the pivot post after it was folded around? A. Approximately sixteen feet.

"Q. How was it fastened with reference to the post at the north extremity where the fence was drawn to? A. It was fastened right on the north side of that post, the top line wire was fastened around the top of the other fence."

Several other witnesses testified the distance was "about a rod" and "about sixteen feet" and others that the fence was folded back to a point about two rods from the tree that was cut down, and others twenty-four feet from the tree. No one pretended to give exact measurements.

Assignment No. 9 attacks the following part of finding No. 7 as not supported by the evidence:

"The folded portion of said fence along its whole extent stood upright against the stationary portion thereof, along which it was folded and approximately the same height, the bottom thereof protruding not to exceed 6 to 10 inches out from the stationary portion of said fence and was fastened to the said stationary fence by twisting by means of players, the ends of the loosened wires of the first, third and fourth strands thereof around the corresponding wires of the stationary portion of the said fence."

Appellant argues that to so find ...