Sutton v. Otis Elevator Co.

• Decision Date: 20 April 1926
• Docket Number: 4305
• Citation: 28 Utah 85,249 P. 437
• Court: Utah Supreme Court
• Parties: SUTTON v. OTIS ELEVATOR CO. et al., and three other cases

249 P. 437

28 Utah 85

SUTTON v. OTIS ELEVATOR CO. et al., and three other cases

No. 4305

Supreme Court of Utah

April 20, 1926

Rehearing Denied September 22, 1926.

Appeal from District Court, Third District, Salt Lake County; G. A Iverson, Ephraim Hanson, and A. R. Barnes, Judges.

Separate actions by Mrs. Glenna A. Sutton, by Mrs. Ruth Snow, by E. H Berg, and by Mrs. Estella Waters against the Otis Elevator Company and others. Judgments for plaintiff in each case, and the named defendant appeals. Reversed, with directions, in Sutton, Snow, and Waters cases. Affirmed in Berg case.

Reversed, with directions, in Sutton, Snow, and Waters cases. Affirmed in Berg case.

Van Cott, Riter & Farnsworth and Richards & Richards, all of Salt Lake City, for appellant.

APPELLANT'S POINTS.

No court, either state, federal or English, has ever gone farther than the Utah court did in the case of Mrs Gertrude Berg v. Otis Elevator Co., et al., 231 P. 832, in extending the liability of an independent contractor to third persons.

Almost without exception even those courts whose decisions were cited against appellant in the Gertrude Berg case do not permit recovery against the contractor for personal injuries suffered by a third person after completion and acceptance of the work unless it is established that the contractor was guilty of deceit. Casey v. Hoover, 89 S.W. 330; O'Brien v. American Bridge Co., 125 N.W. 1012; Wood v. Sloan (N. M.) 148 P. 507.

It is elementary that an independent contractor is not responsible for injuries suffered by a third person after completion of the work where the work is done according to the plan of the owner or where the defect occasioning the injuries is due to the design of the structure, machine or appliance of the owner, with respect to which the contractor is requested to perform his work. Thornton v. Dow, 32 L. R. A. 968.

The alleged defects upon which the witnesses for respondents expressly predicated their conclusion that the cone attachments were imminently dangerous are defects which, if it be assumed that they existed, were open and obvious and at all times well known to defendant Bonneville Hotel Company, its engineers and inspectors, to whom it intrusted the duty of inspection.

The respondents are bound by the allegations of their complaint with respect to knowledge of defects, etc., on the part of the Bonneville Hotel Company. 2 Jones Blue Book of Evid. Sec. 272, p. 503; 1 Ency. of Evidence, p. 613; Brown v. Hartford, etc., Co., 234 P. 352, at 353; Whelton v. Chicago, etc., R. Co., 179 N.W. 140; Walsh v. Walsh, 226 S.W. 236, at 246; Grants Pass, etc., Co. v. Calvert, et al., 142 P. 569, at 571; Dodge v. Chambers, 96 P. 178, at 181; Mulford v. Estudille, 32 Cal. 131, at 138; Rarey v. McAdoo, 205 P. 731, at 733; Layton v. Interstate, etc, Assn., 139 N.W. 463; Smith v. Vickery, 138 S.W. 502, at 505 P. U. C. of Utah v. Jones, 179 P. 745; Sullivan v. Inhabitants of Town of Ashfield, 116 N.E. 565.

In so far as appellant is concerned respondents may not predicate their cause of action upon mere negligence. Proof that appellant was negligent and that its negligence was a proximate cause of the injuries complained, is not enough. The burden rests upon respondents to establish by legal and sufficient evidence that appellant's negligence created the alleged condition of imminent danger and that the defects caused by the negligence of appellant which created the condition of imminent danger were not known to defendant hotel company and were not discoverable upon reasonable inspection. Texas & P. R. Co. v. Barrett, 166 U.S. 617, 41 L.Ed. 1136, 17 S.Ct. 707; Patton v. Texas & P. R. Co., 179 U.S. 658.

Every plaintiff must sustain the burden which the law casts upon him of establishing the facts essential to his cause of action and if the evidence leave any essential fact to conjecture, there is a failure of proof. Tremelling v. Southern Pacific Railroad Co., 170 P. 80, (Utah); Fritz v. Electric Light Company, 18 Utah 493; Virend v. Utah Ore Sampling Company, 160 P. 115 (Utah); Spring Canyon Coal Company v. Industrial Commission, 201 P. 173 (Utah); Busse v. Murray Meat & Livestock Co., 147 P. 626 (Utah); Christensen v. O. S. L. R. Co., 99 P. 676 (Utah); Richards v. O. S. L. R. Co., 123 P. 933 (Utah); Johnson v. Silver King Consolidated Mining Co., 179 P. 61 (Utah).

The cause of action of a third person will never be permitted to extend past the owner to the independent contractor if the owner has himself been guilty of any negligence, concurrent or independent, which directly contributes to the happening of the accident and injuries complained of. Casey v. Hoover (Mo.) 89 S.W. 330; Goar v. Village of Stephen (Minn.) 196 N.W. 171; O'Brien v. American Bridge Co., 110 Minn. 364, 125 N.W. 1012, 32 L. R. A. (N. S.) 980, 136 Am. St. Rep. 503; Schubert v. Clark (Minn.) 51 N.W. 1103; Griffin v. Jackson Light & Power Co., (Mich.) 55 L. R. A. 318; West Jersey R. Company v. Cockran, 266 F. 609; Wilczynski v. Milwaukee, etc., Light Co., (Wis.) 177 N.W. 876; Huset v. J. I. Case Threshing Machine Co., 120 F. 865; Howard v. Redden, et al., 107 A. 509 (Conn.); Missouri, etc., R. Co. v. Merrill, 59 L. R. A. 711 (Kan.); Fowles v. Briggs, et al., 74 N.W. 1046 (Mich.) Griffin v. Jackson Light Co., 87 N.W. 888; Roberts v. S. P. Co., et al., 201 P. 958 (Cal.); Simons v. Gregory, et al., 85 S.W. 751 (Ky.).

It appears to be well settled in all jurisdictions that where, after acceptance, the owner is guilty of negligence which proximately contributes to the happening of an accident, such later negligence of the owner "insulates" the original negligence of the contractor and bars any recovery against him by a third person.

Condition of imminent danger must be present at time of acceptance. "Imminently dangerous" defined. Pierce v. Bidwell Thresher Co., (Mich.) 116 N.W. 1104, 122 N.W. 628; Queen of the Pacific, etc., 25 F. 610; Olds Motor Works v. Schaffer, 140 S.W. 1047; Johnson v. Cadillac Motor Co., 261 F. 878; Kahner v. Otis Elevator Co., 89 N.Y.S. 185; Casey v. Hoover, 89 S.W. 330; O'Brien v. American Bridge Co., 125 N.W. 1012; Bryson v. Hines, 268 F. 290; Wood v. Sloan, 148 P. 507; McPherson v. Buick Motor Company (N.Y.) 101 N.E. 1050; Goar v. Village of Stephen (Minn.) 196 N.W. 171, Krahn v. Owens Co., 145 N.W. 626; Canal Const. Co. v. Clem (Ark.) 260 S.W. 442; Devlin v. Smith, 89 N.Y. 470; Fitzmaurice v. Fabian (Pa.) 23 A. 444; Mayor, etc. v. Cunliff, 2 N.Y. 165; Travis v. Rochester Bridge Co. (Ind.) 122 N.E. 1.

Opinions expressed by witnesses which are at variance with facts conclusively established in the records cannot support a finding. 22 C. J. 733; Falkenstern v. Town of Greenfield, 130 N.W. 61; Groth v. Thomann, 86 N.W. 178; Hicks v. Burgess (Ala.) 64 So. 290; Zalotuchin v. Metropolitan Street R. Co., 106 S.W. 548.

In an action for personal or property damage grounded upon negligence, the vital question to be determined, in so far as liability of the defendant is concerned, is whether or not the negligence of the defendant is a proximate cause of the negligence or injury complained of. Bergman v. D. & R. G. R. Co., (Utah) 178 P. 68; Davis v. Mellen (Utah) 182 P. 920; Edgar v. R. G. W. R. Co. (Utah.) 90 P. 745.

It is elementary that where an instruction directs the jury to find in a particular way or announces that a defendant is liable upon certain stated facts, every fact essential to such liability must be included in that instruction and the instruction cannot be aided nor can its error be cured by statements of the law found elsewhere in the charge. 1 Blashfield's Instructions to Juries, Sec. 80 at p. 176-7; Sec. 78 at p. 170-1.

The appellant was entitled to more than one peremptory challenge of jurors. The mere fact that appellant and defendant hotel company were named as joint defendants in the action was not conclusive evidence that they were on the same "side" or that they were not in fact "adverse" parties. Hogsett v. North Texas Traction Co., 118 S.W. 807; First Nat'l Bank v. San Antonio R. Co., et al., 77 S.W. 410; Hundhausen v. Atkins, 36 Wis. 518.

It was not proper to permit the witness to state that the connection was dangerous. Swan v. Railroad, 41 Utah 518; Detzer v. Stroh Brewing Co., 77 N.W. 948; Konig v. Nevada, etc., Ry. (Nev.) 135 P. 141; Texas & P. Ry. Co. v. Slator, (Tex.) 102 S.W. 156.

C. A. Gillette and Dey, Hoppaugh & Mark, all of Salt Lake City, for defendant Bonneville Hotel Co.

Willard Hanson, of Salt Lake City, for respondents.

RESPONDENTS' POINTS.

Where the defect caused by the negligence of the independent contractor is concealed and cannot be discovered by reasonable inspection, and all the other elements are present such as imminent danger and knowledge by the contractor to such an extent that the contractor would remain liable, by what rule of law or logic can we say or should we say that the contractor should be relieved from liability because of the fact that some other independent negligence of the owner or any other third person concurs in causing the injury? Clearly under the more settled principles of law on negligence such independent concurring negligence would not relieve the contractor from liability. Bryson v. Hines, et al., 268 F. 290.

When the instrumentality or appliance is imminently dangerous the danger is ever threatening like the sword of Damocles; it is imminent--the catastrophe may occur within a day or within a year or within two years. We cannot fix the time, but we know that sooner or later it will happen and that it may happen at any moment. Olds Motor Works v. Shafer, 140 S.W 1047; Johnson v. Cadillac Motor Co., 261 F. 878; Pierce v. Bidwell Threshing Co., 116 N.W. 1104; Casey v. Hoover, 89 S.W. 330; O'Brien v. American Bridge...