Robison v. Robison, 10034
| Decision Date | 17 August 1964 |
| Docket Number | No. 10034,10034 |
| Citation | 16 Utah 2d 2,394 P.2d 876 |
| Parties | d 2 Franklin Duane ROBISON, Plaintiff and Appellant, v. Allison ROBISON and Thorpe Robison, Defendants and Respondents. |
| Court | Utah Supreme Court |
Woodrow D. White, Dwight L. King, Salt Lake City, for appellant.
Hanson & Baldwin, Rex J. Hanson, Salt Lake City, for respondents.
Plaintiff sued to recover for injuries suffered when he was struck on the head by rocks from a dynamite blast exploded by the defendants in constructing an irrigation ditch. Upon the basis of depositions of the plaintiff and two eye witnesses, the trial court granted defendants' motion for summary judgment 1 on the grounds (a) that plaintiff assumed the risk; and (b) that he was contributorily negligent as a matter of law. Plaintiff appeals.
On May 1, 1962, the defendants were working on their farm near the town of Flowell, Millard County, constructing an irrigation ditch along a hillside that was so rocky that they had to blast with dynamite. The plaintiff operates an adjoining farm and contends that he has something more than the passing interest of neighborly curiosity in the ditch project because he gets irrigation water from the same source. During the morning he rode his horse over to see how it was progressing and returned home. Later in the day he again rode over at a time when the defendants and Nolen Jackson, who was working with them, were attempting to blast a large rock formation out of the ditchway. He entered into the activities himself to some extent by suggesting that instead of placing the dynamite on the surface and covering it with mud, they should drill into the rock and place the charge. He took a crowbar and attempted to drive a hole in the rock, but failed.
Defendants then continued to operate as they had prior to plaintiff's advice. Two or three unsuccessful explosions took place. In preparation for the next one, plaintiff suggested that they place some rock on top of the set, and the evidence is in dispute as to whether he helped place some of the rock. After the charge was prepared he rode his horse about 450 feet away. The others drove their trucks into the same area and remained in them, while plaintiff stayed on his horse. The explosion threw rock fragments, one of which struck plaintiff on the head causing him the injuries of which he complains.
Plaintiff relied on allegations of negligence and also upon the rule of absolute liability: that one who uses or is responsible for a dangerous instrumentality is absolutely liable for any resulting damage. 2 Whether dynamite is such a dangerous instrumentality depends upon the circumstances. Used in a crowded city, it of course would be; whereas, using it on a remote area where there is little or no possibility of injury to others, it would not. 3 In doubtful situations between those extremes the problem must be resolved by the answer to the question as to whether the user should reasonably foresee that others might be injured. It is to be observed that even where the circumstances justify its application, this so-called rule of absolute liability has the weakness of most generalities. There are almost always exceptions which prove them fallacious. A commonly used example is the application of the rule to the keeping of a wild animal, such as a chained bear. But if the person injured has deliberately teased the animal, or been so reckless of his safety as to practically invite injury, he cannot recover. 4 It will thus be seen that the so-called rule of 'absolute liability' is not absolute at all. Both the propriety of its application in the first instance, and any defenses against it, are conditioned by the limitations imposed by the fundamental standard which pervades all tort law: the conduct of the reasonable prudent man under the circumstances; and its procedural corollary, that whenever there is dispute in the evidence, or uncertainty therein, as to whether that standard is met, the question is for the jury to determine. 5
On the issue of assumption of risk, the position of the defendants is that inasmuch as plaintiff was aware of the blasting with dynamite, and was under no necessity of remaining there, but nevertheless chose to do so, and in fact participated in the activity himself, he assumed the risk of the injury which occurred. They maintain that this conclusion is so clear and certain that reasonable minds could not differ thereon, and that accordingly, the trial court was justified in so ruling as a matter of law. The ruling undoubtedly would be correct if the evidence demonstrated those facts to that degree of certainty. 6 However, conversely, where the evidence is such that reasonable minds could differ as to whether plaintiff voluntarily assumed the risk of injury, the issue should be determined by the jury. 7 There can be no doubt that plaintiff and all of the participants here were apprehensive of danger. This is evident because the defendants and Mr. Jackson drove in pickup trucks about 450 feet away from the explosion. It is reasonable to suppose that this represented their judgment as to how far away they should go to be safe. The plaintiff rode his horse away the same distance. It seems to the writer an understatement to say that it is at least arguable that the evidence shows that the plaintiff did not desire to assume any risk of harm, but on the contrary, took such measures as a prudent person would to guard against it by placing what he thought was a safe distance between himself and the explosion. Further, he may have been reassured in so thinking by the fact that the others stopped at about the same distance.
Under the circumstances deducible from the evidence, viewed in the light most favorable to the plaintiff, as it must be on summary judgment against him, it appears that the questions whether he should have remained on the premises at all, whether he retreated a proper distance, and whether he should have dismounted from his horse and gotten into or behind a truck, are all facets of his conduct which relate to the question as to whether plaintiff should be deemed to have assumed the risk of the injury he suffered. Closely related is the question as to...
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