Soule v. Weatherby

• Decision Date: 21 September 1911
• Docket Number: 2214
• Citation: 118 P. 833,39 Utah 580
• Court: Utah Supreme Court
• Parties: SOULE v. WEATHERBY et al

118 P. 833

39 Utah 580

SOULE v. WEATHERBY et al

No. 2214

Supreme Court of Utah

September 21, 1911

Rehearing Denied November 11, 1911.

APPEAL from District Court, Second District; Hon. J. A. Howell Judge.

Action by Emory W. Soule against Albert E. Weatherby and others.

Judgment dismissing action upon demurrer to the complaint. Plaintiff appeals.

AFFIRMED.

Halverson & Pratt for appellant.

Valentine Gideon, Agee & McCracken and J. G. Heywood for respondents.

FRICK C. J. STRAUP, J., concurring. McCARTY, J., dissenting.

OPINION

FRICK, C. J.

This is an appeal from a judgment dismissing the action entered after a general demurrer to the complaint had been sustained, and after appellant had elected to stand on his complaint.

The material allegations of the complaint are that on the 26th day of June, 1909, the respondent Weatherby was the owner and in possession of certain real property and a building thereon on Washington Avenue, which is one of the principal business streets of Ogden City, Utah; that said building fronted on said street twenty feet and extended back into the block 132 feet; that on the day aforesaid all the respondents "were engaged in the construction of a certain areaway beneath said sidewalk in front of said building, which areaway was intended as a part and parcel of the cellar beneath said building, and, for such purpose, the said defendants had opened in said sidewalk by removing the surface thereof an areaway of the width of said building and of the depth of about eight feet, and extending across the entire width of the sidewalk; that at the time of the injury hereinafter complained of the said defendants had carelessly and negligently failed to erect proper, or any, guards or means to prevent persons passing along said sidewalk from falling into said areaway, and had negligently and carelessly failed and omitted to place any signs or warnings whatever, of the existence of said excavation, or are way; that on or about the 26th day of June, 1909, the plaintiff, while walking along and over said sidewalk on said Washington avenue, failing to observe said excavation by reason of the fact that his attention was otherwise attracted and engaged as he was then looking in another direction, and not knowing or having reason to know of the existence of said areaway or excavation fell into and to the bottom of said areaway or excavation in said sidewalk without his fault or negligence." The only other allegations of the complaint relate to the injuries and consequent damages which it is alleged plaintiff sustained by reason of the fall.

Does the complaint state a cause of action? It is fundamental that, in order to state a good cause of action in any kind of a case, it must be made to appear from the face of the complaint, either by direct allegation or by necessary or unavoidable inference from the facts stated, that there is a primary legal right in the plaintiff, a primary legal duty connected with such right resting on the defendant, and a breach of such duty. When these allegations are supplemented by a statement of the amount claimed and a prayer for judgment, which are formal matters merely, a complete cause as well as right of action is stated upon which the plaintiff is entitled to relief in accordance with the rules of practice and the substantive law relating to the subject-matter.

When the action is in tort, and especially if it is grounded upon negligence, it must also be made to appear from the complaint that the act or omission which constitutes the alleged negligence was the direct, that is, the proximate cause of the injury or damage in question.

If a complaint is based upon contract, all that is necessary to state is the making of the contract, the obligation thereby assumed, and the breach. The contract in such a case contains the primary right of the plaintiff. In the obligation assumed by the defendant is found his duty, and his failure to comply with the duty constitutes the breach. When these statements are supplemented with a statement of the amount claimed and a prayer for judgment, the complaint is complete.

In an action for negligence arising from an excavation or defect in a street which makes the street dangerous or unsafe for travel by those who have a lawful right of passage, it is not enough to state merely that an excavation of certain dimensions has been made in a public highway, that in making it the person negligently failed to place any signs or guards at or near the excavation and that the plaintiff in passing along the street at the place in question fell into the excavation and was injured, and by means of the injury suffered damages. In such a case the wrong or negligence does not consist in the making of the excavation. It is lawful to make excavations in improving property even in thickly populated cities, and the mere fact that an excavation is made in a portion of a street constitutes ordinarily no wrong, nor is it necessarily negligence. The wrong, if there be any, consists in interfering with a public street, which is a passageway for all, to such an extent as to make travel along the place in question unsafe and dangerous. One may, however, under certain conditions, make a portion of the street unsafe if it is done for a lawful purpose, and especially if done to improve one's property. Where such is the case, however, the party creating the unsafe condition in the street is by law required to place signs or signals so as to warn the public of the danger, and under certain circumstances to supplement such signs and signals with guards or barriers to prevent injury to those who lawfully, and, in the exercise of ordinary care for their own safety, make use of the street either by day or night. Negligence in such case, therefore, consists in the failure to either place signs or signals to warn the public of their danger, or in not putting up guards or barriers to prevent accidents where the conditions are such as to require them. From this it follows that one who seeks to recover for a personal injury which he alleges was caused by reason of the negligent omission to place signs or signals or to put up guards or barriers must allege and prove that the street was unsafe and dangerous without signs or signals or without guards or barriers. This is so because it is the dangerous condition which requires the person causing it to act, and it is his failure to act when he ought to act which constitutes the negligence.

It is an axiom of the law that negligence is never presumed, and hence, in an action like the one at bar, it must be affirmatively made to appear: (1) that the interference with a street makes it dangerous or unsafe for passage; (2) that signs or signals were required to warn the public, and, if these are not sufficient, to allege that guards or barriers were necessary; and (3) that it was the lack of signs or signals or the failure to place guards or barriers which was the proximate cause of the injury and damages complained of.

By the statement that it was the proximate cause we do not mean that it must be alleged in that specific form. What we do mean is that it must be made to appear that the negligence did cause the injuries complained of. Under certain circumstances, it may constitute negligence, even gross negligence, not to place signs or signals or not to put up guards or barriers, but, unless the negligence is the proximate cause of the injury complained of, there is no right of action for such negligence in the one complaining. Mere negligence, however gross, gives no right of action.

We do not wish to be understood as holding that all the essential facts to which we have referred must necessarily be alleged in direct and positive terms. If sufficient facts are alleged from which the inferences that the place was dangerous, that signals or guards were necessary, and that the negligence was the proximate cause of the injury necessarily and unavoidably follow from the facts alleged, then the allegations of the complaint are sufficient to withstand a general demurrer.

These rules of pleading are elementary, and it is not deemed necessary to refer to more than a few of the many authorities which could be cited on this subject. In 3 Bates Pl., etc., 2244, the rules is stated thus:

"Merely averring a defect and injury is not sufficient, unless the latter appears to have been the result of the former."

It is further said:

"So, if lack of barriers along the side of a walk is the neglect, it must be averred that plaintiff would not have fallen had there been such guards."

In referring to this doctrine the Supreme Court of Wisconsin, in the case of Bodah v. Town of Deer Creek, 99 Wis. 509, 75 N.W. 75, says:

"As this court has often been called upon to say, the mere breach of a duty which one person owes to another respecting his personal safety and an injury to such other do not constitute actionable negligence. There is still needed the element that the breach of duty in a line of responsible causation was the cause which produced the injury, and the facts in that regard must be alleged in the complaint."

In City of Logansport v. Kihm, 159 Ind. 68, 64 N.E. 595, it is said:

"While the paragraph describes a specific defect in the street, and alleges that the accident occurred by reason of that defect, it wholly fails to show that the defect in the street was the proximate cause of the accident and injury."

In City of Hammond v. Winslow, 33 Ind.App. 92, 70 N.E. 819, in referring to the question that it must appear from the complaint that the negligence was the proximate cause of the injury in question, Mr. Justice Robinson says:

"It is left altogether to inference that, if guards had been maintained along the...