Jensen v. Logan City
| Citation | 89 Utah 347,57 P.2d 708 |
| Decision Date | 02 May 1936 |
| Docket Number | 5719 |
| Court | Supreme Court of Utah |
| Parties | JENSEN v. LOGAN CITY et al |
Appeal from District Court, First District, Cache County; Melvin C Harris, Judge.
Action by Alfred Jensen against Logan City and another. From a judgment for defendants, plaintiff appeals.
REVERSED AND REMANDED.
H. A Sjostrom, of Logan, and Homer Holmgren, of Salt Lake City for appellant.
Leon Fonnesbeck and Young & Bullen, all of Logan, for respondents.
The plaintiff caught his foot in the meshes of a wire fence, was thrown to the sidewalk, and injured. He sues the city of Logan and the abutting owners. The undisputed facts are as follows: On the 1st or 2d of March, 1933, a Mr. H. C. Maughan, general supervisor of the Logan City light department, instructed a Mr. Joseph H. Kent, a lineman employed by the light department, to accomplish the removal of a tree which grew on the west property line of the Anderson Lumber Company's property on the east side of Main street in Logan, Utah. In order to remove the tree, about sixteen feet in length of a wire fence was doubled back on the street side (not on the property side of the fence). Kent testified he removed the wire net fence from the top railing for sixteen feet and from the gate post to which the south end was fastened, and doubled it back for sixteen feet more from south to north, pulling it as tight as he could with the pliers, and fastened the first, third, and fourth strands around the fourth post (counting from and including the post from which that end was removed); the posts being approximately eight feet apart. He fastened the "bottom portion by nailing just as good as I could to the fence in order to get clearance from the sidewalk." The wire ends of the strands as they were fastened to their original post were not cut, but the staples were removed and the first, third, and fourth strands were carried around the fourth post and with pliers twisted around the vertical wires of the attached portion of the fence to the north of that post so that initially it may be inferred that the top of the doubled-back portion was even with the top of the undisturbed portion of the fence. Kent testified that there was no part of the fence extending into the sidewalk after he fastened it back. The bottom part was eight or ten inches out from the fence. A snow bank prevented him from pulling in the bottom part closer. After the tree was cut down, he started to replace the fence, when Mr. Nyman (employed by defendant lumber company) told him he could leave it down so they could take part of the tree out that way. He "fastened it back again so it would not be loose."
On March 18th, about 11:30 p. m., plaintiff Jensen was walking with a Mr. Lundberg on the sidewalk near the Anderson Lumber Company property, his foot became tangled in the wire fence, and he was thrown to the ground. The paved portion of the sidewalk was six feet wide. There was about three feet of unpaved portion between the east side of the paved portion and the fence line. These facts are undisputed. The vital question was whether a portion of the doubled-back wire was on the paved portion of the sidewalk at the time of the accident.
Before proceeding with the disputed facts, we shall examine the pleadings in order to determine what issues of fact and law are presented. The plaintiff set out that Logan City, through its agent Kent, with the knowledge and consent of the Anderson Lumber Company, "unnecessarily and unreasonably folded said net wire back upon itself in such negligent and careless manner that the part of said net wire when it was folded, as aforesaid, projected for a distance of one foot out over and upon the paved portion of the sidewalk," etc. (Italics supplied. It will be thus noted that the one act of negligence charged to the city is involved in the manner in which the dismantled portion of the fence was originally fastened and concerns the condition in which it was originally left after it was fastened. This charges commissive negligence, being the creation of a dangerous condition. There is nothing in the complaint which would impugn such negligence to the abutting owner, the defendant lumber company. It is not claimed the city was acting as its agent. The complaint then proceeds to charge both parties with omissive negligence in leaving and permitting a dangerous condition to exist and continue on the sidewalk. It states, "they [both defendants] wrongfully, negligently," etc., "permitted said wire to remain so extended out over and upon said sidewalk as aforesaid [e. g., over the paved portion thereof] * * * for a period of approximately four weeks * * *." The complaint also alleges that the defendants "well knew or should have known a long time prior to the 18th day of March, 1933, that said dangerous condition existed." There are allegations which are repetitions but, more amplifying of the nature of the dangerous condition and knowledge, actual or constructive, of defendants.
It will thus be seen that the city is charged with negligently creating a condition, and the city and the lumber company with negligently permitting it to exist after they had the duty to remove it. The complaint narrows the dangerous condition as one existing on the paved portion of the sidewalk. We shall see later whether the matter of whether the condition on the three feet between such portion and the west fence line of the lumber company's property is drawn into consideration through expansion of the issues in the trial or by reason of the law applicable to the situation. The defendants after separately denying all the acts of negligence alleged, each separately set up as affirmative defenses that the injuries of plaintiff were "caused by the negligent acts of plaintiff * * * and that said injuries were contributed to by the negligent acts of plaintiff."
The case was tried to a jury; verdict was for the defendants; and the special interrogatory reading, "was the wire in which the plaintiff alleges he caught his foot projecting out over part of the paved portion of the sidewalk at the time of the accident?" was answered in the negative by the jury.
The assignments (1 and 2) assail rulings admitting and rejecting evidence. H. R. Pederson, the city auditor, was permitted to answer, over objection, the question, "Did any one ever speak to you, or complain about any obstruction on the sidewalk at that point?" The objection was well taken. Plaintiff was obligated either to prove actual knowledge on the part of the city or constructive knowledge. If he proved actual knowledge on the part of those charged with the duty to keep the sidewalks clear, it was immaterial whether any complaint had been made. Constructive knowledge arises by virtue of the fact that the condition exists for such length of time that the city reasonably should have taken notice of it and is therefore charged as if it had actual notice. Whether or not any one complained of the condition is immaterial, except as it might be introduced by plaintiff to show that some one did complain, and therefore that the city did have actual knowledge. But that some one did not or no one did complain is immaterial to constructive knowledge. The jury determines under all the circumstances, and from the time the condition existed, whether the city should have taken notice. But the error is nonprejudicial. Cases are not reversed for such errors.
One Bench, a witness for the defendants, was asked on cross-examination if plaintiff had not asked him if he had observed the wire. He said he did not remember plaintiff asking him this. One Godfrey, defendants' witness, was asked on cross-examination if he had not said to plaintiff that he did not remember anything about the fence. He answered: "No." Plaintiff sought to impeach by asking Jensen, the plaintiff, the following:
Here was interposed an objection on the ground that it was hearsay, incompetent, and as not rebuttal, and the objection was sustained. Obviously, if Bench testified that he had observed the wire but told Jensen that he had not particularly observed it, and then on the stand said he remembered nothing about Jensen asking him if he had made any particular observation, such evidence by Jensen, if the jury believed him, would certainly have tended to impeach the witness Bench. Likewise, if Godfrey on direct examination had testified concerning the fence and on cross-examination testified that he did not recall telling Jensen that he did not remember anything about the fence, and Jensen could state that he had so stated to him, it would tend to impeach his testimony concerning the position of the fence. Even where a witness states he does not remember any conversation with the proposed impeaching witness, that part of the alleged conversation which it is claimed would impeach him should be called to his attention, for it may yet serve to refresh his memory and give him the required opportunity to deny it specifically, or, if admitting it, to qualify or explain it or testify as he thinks it actually took place. This was not done with the witness Bench. Godfrey was asked specifically whether he recalled saying to Jensen that he did not remember anything about the fence. But the impeaching question coupled the matter of a conversation generally with both witnesses and did not ask Jensen whether...
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...are present, it would be an abuse of sound discretion not to grant the same."Duncan, 132 P.2d at 125 (quoting Jensen v. Logan City, 89 Utah 347, 57 P.2d 708, 723 (1936)).42 Hiltsley v. Ryder, 738 P.2d 1024, 1026 (Utah 1987) (Zimmerman, J., concurring); Anderson v. Utah County Bd. of County ......
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