Jensen v. Logan City , 96 Utah 53 ( 1938 )

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 1, 2 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 3 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 4 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 plyers, 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 "the court has had to rely entirely upon defendant's witness who saw the fence some time after it was dismantled," notwithstanding plaintiff's witness "testified definitely that the fence bulged out so as to extend onto the paved walk."

There was a clear conflict in the evidence, and it was for the trial court to find the facts as best as he could after considering the credibility of witnesses and weighing the evidence. Many witnesses testified to the condition reflected in the finding; we shall quote only from a few such witnesses in addition to the evidence already quoted:

Schow, a witness for respondents, testified on cross-examination:

"Q. Did you observe the bottom part extended further out than the top. A. Just as I explained to you it looked like it was right straight along the fence.

"Q. Straight up. A. Yes sir.

"Q. Perpendicular? A. Yes, sir.

"Q. And right flush with the other fence? A. Well, that is the way I observed it. It looked like it was right tight on the fence, of course.

"Q. Standing upright, perpendicular? A. Yes, sir.

"Q. Right flush up with the other fence? A. Yes, sir."

Hailstone, a meter reader for the city, passed on March 18th, stopped and leaned his bicycle against the fence. He described the condition as follows on cross-examination:

"A. I don't think it would be over two or three inches. It looked like part of the fence.

"Q. The wire was standing practically perpendicular? A. Yes sir, running parallel with the other fence.

"Q. You stood your bicycle in an upright position? A. Yes sir.

"Q. The bicycle pointed up and down the sidewalk or in towards the inside of the lot? A. It was parallel with the fence, facing north."

Bench, one of the workmen who cut the tree into stove length firewood, said he walked on the sidewalk many times a day during the week prior to the accident going to get drinking water, passing the folded-back fence, and that the top of the wire folded back was about the same height as the other. On cross-examination he testified:

"Q. This fence was folded back right close to the other fence? A. Yes, sir.

"Q. Almost right against it, is that right? A. Yes, sir.

"Q. And set up perpendicular? A. Yes, sir.

"Q. Right flush with the other fence? A. Yes, sir.

"Q. Was there any strand looped at the point where the fence was folded back? A. I never noticed much of a loop there. It could not have been much, because we always went on that side, to go to get us a drink.

"Q. The fence had been folded back there, so that there was scarcely any loop there? A. Yes, sir.

"Q. It stayed in that condition every day that you were there? A. Yes, sir."

Lundahl, an iron worker, who passed the place on the sidewalk two or three time a day, testified:

"Q. State to the court just what your observations were as to the manner in which it was hooked? A. Well, there was about sixteen feet, I imagine, something like that, pulled around and fastened up to the other fence.

"Q. How with respect to the other fence did it stand? A. Just about the same height, as the other fence.

"Q. And its position as to whether it was leaning or upright? A. It was just about upright, just about the same as the other fence, straight up."

Assignment No. 10 is directed to part of finding No. 7 as follows: 5

"* * * neither Logan City nor Anderson Lumber Company was guilty of any negligence in the manner in which said fence was folded back and fastened but the same was folded back and fastened in a reasonable, careful and prudent manner."

This, it is said, is a conclusion and not the finding of any fact. It does, however, find support in the other findings of fact, and is a conclusion which the court could well make from the facts found.

Assignment 11 attacks part of finding No. 7 as follows: The fence "remained in substantially the same position and condition from the time it was originally fastened till some time after 10 o'clock P.M. of the day upon which the 6 accident here complained of occurred."

Appellant argues this cannot be true because (1) Kent testified that after the tree was cut down "he took the fence down from where he had fastened it to restore it to its original position, and there is absolutely no evidence as to how he re-fastened it." At the first trial Kent said:

"I was intending to replace the fence, started to, and Mr. Nyman told me I could leave it down so they could take part of the tree out that way after I quit there. I fastened it back again so it would not be loose."

On this trial he testified:

"Q. Now, did you take the wires loos(e) from the way in which you had first fastened it? A. No, sir, that as I recall.

"Q. You didn't touch the wires? A. No, sir.

"Q. You just took the scantling and was going to put that back? A. Yes, sir.

"Q. When he gave you that information? A. Yes, sir.

"Q. When you left there, was the wire in the same condition as to fastening as you have described here to the court, as you first fastened it? A. Yes, sir."

The court's finding is that the wire was "substantially" in the same position and condition. Other witnesses so testified to the same position of the wire.

The second objection to the quoted finding is that the court disregarded the testimony of a number of plaintiff's witnesses who said they saw the wire on the sidewalk at some time during the interval that the fence was dismantled. There is evidence that the wire was out on the paved walk at between 11:30 and 12 o'clock on the night that plaintiff was tripped by it. There is also evidence by many witnesses who passed from two to four times a day during the whole time the fence was dismantled, and also by witnesses who passed occasionally, and as late as 10 o'clock on the night of the accident, that it was in place against the fence and not out on the paved walk at any time.

Gibbons, a man working for the Smith Lumber Company, living at a point where he passed three or four times every day, testified:

"Q. Was there ever any time on the day of the happening of the accident we are talking about, or at any other time, from the time that fence was opened until after the accident, until the day of the accident, when any part of the wire protruded out on the sidewalk? A. No, sir. Not on the pavement. That is what you call the sidewalk, isn't it?

"Q. Yes. That is what I call the sidewalk. Well, having reference to where it was turned back over the posts it was folded back on, the wire would make a bend here and fold back? A. Yes, sir.

"Q. How close was the wire that was folded back to the other wire on that fence that hadn't been disturbed? A. I would say from six to eight inches. I don't think it could get any closer without a stretcher."

Fister, a man in the harness and saddle business, testified:

"Q. During the period while the tree was being cut down, and while the men were logging it up, did you go up and down, as you have stated, four times daily? A. Yes, sir.

"Q. Was there ever any time when you went up and down that any part of the fence was out on the sidewalk? A. Never was. Never bothered me. I never seen any fence. I went along about my business, as usual.

"Q. If there had been a part of the fence out on the sidewalk would you have seen it? A. Absolutely. * * *

"Q. Do you remember particularly on the evening upon which Mr. Jensen was injured; do you remember particularly the hour you went? A. No, I could not tell that. It would be between six and seven, along in there, somewhere.

"Q. Yes. When you went home that night, was there any part of that fence out on the sidewalk? A. Why, there was no part of the fence on the sidewalk at any time when I went home. There was no obstructions on the sidewalk that I know of.

"Q. You are not connected in any way with the Anderson Lumber Company? A. No, sir.

"Q. Nor with Logan City? A. No, sir."

Wilson, a clothing merchant, testified:

"Q. At any time when you went by that place was there any part of the wire that protruded out from the fence any further than the distance where you say it was out where it curved at the post? A. No, sir.

"Q. Was there ever any time when any part of that wire was out on the sidewalk? A. No, sir.

"Q. What time did you go home the night that this accident happened? A. Around about ten o'clock

"Q. That was Saturday night? A. Saturday. We close at nine on Saturday nights. Sometimes we are detained for an hour or a half an hour, or so.

"Q. That is you close your doors? A. Yes, at nine o'clock.

"Q. Did you walk right by that place that night? A. Yes, sir.

"Q. At ten o'clock? A. Yes, sir.

"Q. Was there any wire on that sidewalk when you went down that night going home at ten o'clock? A. No, sir."

It is argued next that it is a "fanciful assumption that some time" after ten o'clock someone unfastened the wire so that it was on the paved walk near midnight when the plaintiff stumbled and fell because of its being on the walk. There was positive evidence from reputable witnesses that the wire was not out on the walk at all on that day up to ten o'clock at night, and also positive evidence that it was out on the walk at about 11:30 or 12 o'clock when the accident happened. The trial judge could hardly do other than he did in so finding the fact. It is not a "fanciful assumption" at all, but a very reasonable one. Appellant testified he walked on this same paved sidewalk and went in and visited the men logging the tree at about five o'clock in the afternoon of the day of the accident; that he remained there about half an hour and showed the men a card trick. He said that at that time the paved sidewalk was clear and he saw no wire on it although he had seen the wire on it two weeks earlier. The evidence seems to be in hopeless conflict. The court was, however, under the necessity of making a finding of the facts. In doing so he followed what appeared to be the preponderance of the evidence.

By assignments 12 and 13 complaint is made that there is some conflict in the findings after they had been amended by the court on motion of appellant to make them clearly show that the appellant was walking on the paved walk when he caught his foot in the wire. In his brief appellant says, "The court could not, under the evidence, have found that 7 plaintiff was walking on any part of the sidewalk other than the paved walk." We are not now concerned with liability of defendants, if any, for any condition on the parking spaces adjoining the sidewalk in the face of this concession by plaintiff. There is no point in the argument of inconsistency because when the court's attention was called to an inconsistency in the original draft of findings he made the change so that the findings as signed included the one that the accident happened on the paved sidewalk.

Assignment No. 1 assigns error of the court in permitting the attorney for defendant Anderson Lumber Company to cross-examine the witness J.H. Kent, called by defendant Logan City. Plaintiff made the city and the Lumber Company parties defendant and sought to hold each or both liable. Each defendant was interested in excluding itself from liability and not 8 particularly interested in whether or not the other was held liable. Each might have been held on different facts. In some aspects their interests were adverse, in others not. It was for the court in the exercise of a wise discretion to permit the cross-examination of the witness under these circumstances. The right could be denied where the interests of co-defendants are identical. 70 C.J. 612. This point was settled against appellant's contention in the decision on first appeal wherein we said respecting a similar objection to cross-examination of a witness produced by the City: "The Lumber Company would be permitted to cross-examine her, which in fact it did attempt to do, but was stopped by the court on the ground that it had no right to cross-examine. No cross-assignment of this ruling as error was made."

Assignments 2, 3, and 4 have to do with a rejected offer by plaintiff to have a witness, one Bingham, testify with respect to the present condition of the fence as to kinks and bends, about three and one-half years after the accident; to testify that he could not pull the fence back as Kent had said he did; and to conduct an experiment to determine whether the 9, 10 fence could be pulled back as Kent said he pulled it. There was no error in these rulings. The then condition of the fence as to kinks and bends after three and one-half years was not material. Testimony that one now might not be able to pull the wire back as another said he did would not be competent. The matter of experiment was wholly discretionary with the trial court and the adverse ruling was not an abuse of discretion. 22 C.J. 790.

Assignments six and seven attack the finding in paragraph six that in opening the fence and fastening it back Kent acted as the agent of the Unemployment Council and not as an agent of either defendant. This is said to be not justified because Kent was an employee of Logan City at the time he dismantled the fence and was acting under the direction of Maughan, 11 the superintendent of the City light and power department, thereby imposing liability on the City; and that when Nyman, an employee and yardman of the Lumber Company directed Kent to leave the fence dismantled the Lumber Company then became responsible for all that Kent had done in connection with the fence.

The evidence clearly shows that the taking down of the tree was a make-work project, sponsored by a committee of citizens known as the Unemployment Council. Maughan was a member of this committee. He loaned Kent, a City employee, to the committee for the purpose of supervising the taking down of the tree. To effectuate the purposes of the committee of obtaining firewood for unemployed men who would cut down and prepare the firewood, the Lumber Company gave the tree and permitted it to be cut down. Kent opened the fence by drawing back one portion of the wire mesh against the other. The Board of Commissioners of Logan City took no part in the tree project. The City neither furnished any funds nor received any funds for the project and obtained no benefit therefrom. The project was in no sense a corporate enterprise or activity. The Unemployment Council outlined the work and directed its accomplishment. Kent was not an agent for either defendant in doing what he did nor was either defendant bound by his actions. Had the wire been out on the sidewalk and had it remained there long enough so that either defendant had constructive or actual notice of such fact, there could be liability on one or both defendants. We are at a loss to know how a City employee who at another's request goes on private property to cut down a tree can make the City liable for his negligence, if any, in the premises.

Mayor Lundstrom testified that the City corporation took no part in the activities of the Unemployment Committee or the tree-chopping program; that the matter never came before the City Commission. The Mayor knew from the newspapers that Maughan was a member of the committee.

Maughan testified he loaned Kent to the committee because he was skilled in removing trees; that the tree or its removal had nothing to do with the light plant. The committee advertised in the papers asking people having trees they could spare to communicate with the committee. Nyman, an employee of the Lumber Company, communicated with the committee and said it had a tree it was willing to put into the project. There was ample evidence to support the court's finding that in this work Kent did not act as agent for either the City or the Lumber Company.

The other assignments are that the court erred in making conclusions of law and entering judgment for defendants. The merits of these assignments are involved in the matters already treated and hence need not be discussed. There was evidence to support all the findings, and no error was committed by the trial court.

The judgment of the District Court of Cache County is affirmed. Costs to respondents.

HANSON, J., concurs.