Soule v. Weatherby ( 1911 )

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 tbereon 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 area-way, and had negligently and carelessly failed and omitted to place any signs or warnings whatever, of the existence of said excavation, or areaway; 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 appeal* from the face of the complaint, either by direct allegation or by necessary or unavoidable inference from the facts stated, 1 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 2 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 3 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 4 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 a.t bar,, it must be affirmatively made to appear: (1) that the interference with a street makes it dangerous or unsafe for, passage; 5 (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 6 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 snob 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 7 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 rule is stated thus:

“Merely averring a defect and injury is not sufficient, unless tlie 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 tbe 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. 511, 75 N. W. 76, 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. 70, 64 N. E. 596, it is said:

“While the paragraph describes a specific defect in the street, arid 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. 95, 70 N. E. 820, in referring to the question that it must appear from the complaint that the negligence was the proximate canse of the injury in question, Mr. Justice Robinson says:

“It is left altogether to inference that, if guards had been maintained along the side, she would not have fallen. Under a- number of rulings we think the complaint must be held insufficient.”

If we now apply the rules of pleading as the same are stated above to the allegations of the complaint in this case, how can it be said that the complaint states a good cause of action ? Certainly no one can claim that it is stated in direct terms that the excavation was dangerous. - Let us assume that this fact can properly be inferred from the allegations concerning the place where the excavation was made and the dimensions thereof. After having assumed or inferred the dangerous condition, the question now arises as to whether the condition was such as to require either signs or guards at all times of the day and night. There is no direct allegation that either signs or guards were necessary; but whether they were or not must again be inferred'. In making these inferences we must, however, infer that the respondents were guilty of negligence. While it is true that negligence may be inferred from other facts as a rule of evidence, and such is often done, can it, however, with the same degree of liberality,, be inferred that negligence existed from other facts stated in a pleading ? In other words, when it appears from the pleading, as in the case at bar, that an excavation is being made, that the work is proceeding in the daytime and at the time the plaintiff fell into it, the question at once arises whether from the mere description of the excavation and the place where it is we may infer that it was so dangerous a place as to require the placing of signs or guards in broad daylight. Had the appellant in direct terms alleged that the excavation was dangerous in daytime, then we might infer that signs or guards were necessary, and that a failure to put any constituted negligence. The inference would thus at least be a natural, if not wholly an unavoidable, one. Assuming, however, far tbe purposes of tbis decision, that there are sufficient facts stated from which it may he inferred that the respondents were required to erect a sign to apprise passers-by of the danger, from what fact or facts alleged in the complaint can it be also inferred that the absence of a proper sign or signal of warning caused the appellant to fall into the excavation ? He alleges in positive terms that in approaching the excavation “he was then looking in another direction” from that in which the excavation was located.

From this it unavoidably follows that the failure to erect a sign could not have been the cause of appellant’s falling into the excavation for the reason that even though 8 a sign, or any number of them, had been put up at or near the excavation he would not have seen them, and hence they would have been entirely useless so far as he is concerned. Any negligence, therefore, that may have arisen from the failure to place signs or signals, could not have any effect or influence in this case. How about the negligence in failing to put up guards or barriers ? As we have seen, there is no allegation that guards were actually necessary, or that •the excavation was dangerous in the daytime without them. But, assuming that there was danger without guards, the question at once presents itself, what right have we to infer that appellant, in view of his conduct at the time, would not have fallen into the excavation, although sufficient guards or barriers had been put up? While it is possible that a guard might have prevented his fall, it is equally possible that it would not have done so; and, in view that appellant is perhaps the only one who knows and refuses to state the fact, we have no right to create inferences in his favor.

It is important to keep in mind that an inference in a pleading takes the place of a positive allegation, and hence must naturally and necessarily arise out of some fact or facts positively stated. An inference in a pleading, therefore, is equivalent to a positive statement of an ultimate 9 or operative fact required to be stated. As a matter of evidence, an inference may have but slight force or effect. It may only be more or less persuasive and entirely inconclusive, and still it may be considered, since it is evi-dentiary merely. In pleadings, however, the inference, to be availing, must'stand as and for an ultimate fact, and therefore must be clear and certain. Appellant’s statements left the question with regard to his fall a matter of conjecture merely. ■ This is wholly insufficient to withstand a general demurrer timely interposed.

It is also contended that the demurrer was properly sustained upon the ground that the facts stated in the complaint show' that the appellant was guilty of negligence which caused or at least materially contributed to the injury complained of.

In view that both associates of the writer are of the opinion that the complaint is not vulnerable upon that ground, their judgment is deferred to. Inasmuch as anything 10 that might be said upon that phase of the case would still leave the result the same, it is useless to discuss the question at all.

From what has been said it follows that the judgment of the court below should be affirmed, with costs to respondents. It is so ordered.