Ogden Livestock Shows, Inc. v. Rice , 108 Utah 228 ( 1945 )

If a bridge breaks while a person lawfully entitled to use it is crossing with a load, is such user liable in damages? If so, is such liability predicated upon negligence of the user? What constitutes negligence in such a case? These are the questions involved in this appeal from the District Court of Weber County. These are the essential facts. Ogden Union Stockyards, a corporation, owned certain lands in Weber County upon which it operated livestock feeding and sales yards. By written lease it let the plaintiff Ogden Livestock Shows, Inc., a small tract of land upon which plaintiff constructed a building called the coliseum, as a place to conduct livestock shows, athletic events and exhibitions of a general public character. This lease covered the ground occupied by the building, and a right-of-way 14 feet in width immediately adjoining said building on the east, north and west sides, for the purpose of ingress and egress to and from said building; also including a right-of-way approximately 203 feet long for ingress and egress over the lands east of the building from the building to West Twenty-fourth Street, all said rights-of-way being "subject to the joint use of both the company and the association." The Hooper Canal crossed the tract of land east of the coliseum, over which land the aforesaid right-of-way was granted. To enable it to use the granted right-of-way, plaintiff constructed over this canal a bridge 20 feet wide with a span of approximately 38 feet. It was a wooden structure, supported by five wooden beams, 18 inches high and 12 inches wide; across these was a laminated deck of 2 x 6 inch planks set upon edge and spiked together; over this were plank runways across the bridge, and the top of the whole bridge was covered with asphalt. In 1941, the Stockyards was making some improvements on its property. Defendant Wade was to deliver the cement for this job on the property. He arrived at the bridge in question with a truck load of cement. The truck weighed 6300 pounds and was loaded with 240 bags of cement weighing 94 pounds each, making a gross load weight of approximately fifteen tons. Before crossing the bridge, Wade stopped and talked to Murray, an employee at the Coliseum, about the bridge, got under it, examined it, concluded it would hold his load, and started across. Just as the front wheels of the truck got to the opposite bank, the bridge gave way under the rear wheels and sagged down to the ground. Plaintiff brought this action against Wade to recover the costs of building a new bridge. The court found for plaintiff and defendant appeals, presenting for resolution the questions posed at the beginning of this opinion.

It seems well settled by the authorities that if by the wrongful act of a third person, a bridge maintained by a public corporation is damaged, the corporation may maintain an action against such person for the expenses of repair. 4 R.C.L. tit. Bridges, p. 216; City of Marinette v. Goodrich Transit Co.,153 Wis. 92, 140 N.W. 1094, Ann. Cas. 1917B, 935; Texas P.R.Co. v. Interstate Transp. Co., 155 U.S. 585, 15 S. Ct. 228,39 L. Ed. 271, wherein the court says an action will lie if the "injuries have been negligently or wantonly inflicted upon the bridge." So also where a bridge erected lawfully but constituting private property is injured by the negligent act of another its owners have a right of action against the person causing the injury. Texas P.R.Co., v. Interstate Transp. Co., supra; Bucki v. Cone,25 Fla. 1, 6 So. 160; Cue v. Breeland, 78 Miss. 864, 29 So. 850;Chico Bridge Co. v. Sacramento Transp. Co., 123 Cal. 178,55 P. 780; State v. Yellow Baggage Transfer Co., 211 Wis. 391,247 N.W. 310; 11 C.J.S., Bridges § 99, p. 1136; 8 Am. Jur. 973; Annotation, Ann. Cas. 1917B, 938. But this liability must be based upon negligence or wanton wrongdoing. This is an indispensable factor. St. Louis, etc., Packet Co. v. Keokuk H. Bridge Co., C.C., 31 F. 755; Chico Bridge Co. v.Sacramento Transp. Co., supra; New Westminster v. SteamshipMaagen, 18 Brit. Columbia 441. In the St. Louis Packet case the court said that all duty demanded was that one use ordinary skill and care. In Highway Com'rs v. Chaffee, 1 Mich. N.P. 147, the court in charging the jury as to the nature of liability for injury to a bridge said:

"The common-law rule is to be here strictly applied, ``whoever to the injury of another, neglects a duty which he ought to perform by law, becomes liable to compensate the injury or damage.' The test is this: in order to avoid doing a damage to the property of another, a person is bound in law to such care in the use of his own property, as a prudent man would employ, under similar circumstances, if he were himself the owner of the property exposed to damage." (Quoted in note in Ann. Cas. 1917B, 939.)

And the burden is upon one desiring to use a bridge to exercise ordinary care for his own safety, and to exercise ordinary care to avoid injuring the bridge.

The Ohio Court in Board of Com'rs of Hardin County v.Coffman, 60 Ohio St. 527, 54 N.E. 1054, 1058, 48 L.R.A. 455, stated the rule to be that one desiring to transport property over a bridge is not chargeable with negligence unless the appearance of the bridge, its situation or structure or other circumstances would suggest to a person of ordinary prudence that it was defective or dangerous, so that ordinary care would require that he forgo the use of it or make sufficient examination to reasonably assure him of its safety. The court then poses as a test, the question:

"Were the circumstances such that a person of ordinary prudence, in the exercise of ordinary care in the situation of the deceased, would reasonably apprehend and anticipate that it would be dangerous to go upon the bridge in that way?"

The Pennsylvania court said:

"The question is, whether the apparent condition of the bridge on that date * * * was such as ought to have led a man of ordinary prudence to foresee that it could not be used safely by the exercise of reasonable care." Schneider v. Mill CreekBorough, 52 Pa. Super. 436.

And the Michigan Court in Comstock v. Georgetown Tp.,137 Mich. 541, 100 N.W. 788, 795, said the test was "whether he was as prudent as men generally." In Kolsti v. Minneapolis St.L. Ry. Co., 32 Minn. 133, 19 N.W. 655, 656, we read:

"When the question is, did a person use ordinary care in a particular case, the test is the amount of care ordinarily used, by men in general, in similar circumstances."

The Wisconsin court in Walker v. Village of Ontario,118 Wis. 564, 95 N.W. 1086, said that in bridge cases ordinary care is such as would be suitable to or commensurate with the hazard or risk which would naturally attend the crossing of the bridge. To like effect is County Com'rs v. Timmons, 150 Md. 511,133 A. 322. One approaching a bridge which one may lawfully use, with only such vehicle or load as is usual, or as not infrequently crosses the bridge, may assume the bridge is safe, and cross without inquiry or investigation, unless there is something about the structure, or some knowledge has come to him, or some warning been given which should put him on inquiry as to the safety or strength of the bridge. Board of Com'rs v. Creviston,133 Ind. 39, 32 N.E. 735. But where one approaches a bridge with an extraordinary or unusually heavy load, or with an unusual vehicle which may increase the strain or the vibration, one is under duty to consider the strength of the bridge and exercise ordinary care in determining that matter before crossing. Board of Com'rs v.Creviston, supra.

What then constitutes ordinary care on the part of one lawfully using a bridge in determining the capacity of the bridge to carry his load? It is simply such care as an ordinarily careful and prudent person would use, and such care does not require that the mind of the user be free from doubt as to the capacity of the bridge. In McDermott v. Ida County, 186 Iowa 736,171 N.W. 690, 692, where plaintiff sued to recover for the death of her intestate caused by a bridge caving in under his load, the court says:

"Instruction 9 offered asked the court to charge that, if it was a question in the mind of the decedent whether the bridge would carry the load he was attempting to take across it, it should find for the defendant. Obviously this is not the law." (Italics added.)

The Indiana court in City of Wabash v. Carver, Ind. Sup.,26 N.E. 42, 43, stated the rule thus:

"One who contemplates going upon a bridge with a vehicle of unusual construction, or with a load of extraordinary weight, must himself ascertain the probable sufficiency of the bridge, and take notice of the condition and apparent strength of the structure, of the purpose for which it was built, and of the kind of vehicles ordinarily used thereon; and if, without knowledge or prudent inquiry or investigation concerning its capacity, condition, or use, he subjects it to an extraordinary strain, he must take the risk of injury."

In Moore v. Hazelton Tp., 118 Mich. 425, 76 N.W. 977, the Michigan Court said the law is that if a person had actual knowledge or was in possession of facts or circumstances or information concerning the condition of the bridge which would put reasonable, careful and prudent men upon inquiry as to whether the bridge was in a condition reasonably safe to drive upon, it would be negligence for them to do so without first making careful examination for the purpose of determining whether the bridge was safe for them to drive upon. The rule as stated by the Supreme Court of Nebraska in Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756, is that if one has an extraordinary load or reason to doubt the capacity of the bridge, it would be negligence to go upon the bridge without examining it to ascertain its condition.

The Minnesota court elaborated more fully upon the act of the user in examining the bridge by stating that when such examination was made, the user was charged with full knowledge of what the examination would disclose at the time when he drove upon it, that is, he was held to the knowledge of the results a reasonable examination would have shown. Anderson v. City ofSt. Cloud, 79 Minn. 88, 81 N.W. 746, 7 Am. Neg. Rep. 604. Justice Barden of Wisconsin succinctly stated the obligation of one about to use a bridge in this language:

"If the defects mentioned were so obvious that, in the exercise of ordinary care, the plaintiff could have discovered them, then, of course, he was guilty of negligence in attempting to cross. * * * Ordinary care does not require him to make the test spoken of by the witness. He was only bound to make * * * such observations as common prudence would seem to dictate, in view of his knowledge and all the surrounding circumstances."Walker v. Village of Ontario, 111 Wis. 113, 86 N.W. 566, 567.

The test referred to was a claim that he should have taken a bit and bored into the timbers to see if there were defects not visible from the outside. The Courts of New York have indicated that if an inspection is made and the conclusion reached that the bridge will carry the load, there is no negligence. And in Heib v. Town of Big Flats, 66 A.D. 88, 73 N.Y.S. 86, they said that whether a prudent man would have deemed it safe to cross the bridge without inspecting the stringers, would be a question for the jury. In Higgins v. Garfield County, 107 Neb. 482, 186 N.W. 347, it was held that one was not guilty of negligence in attempting to cross a bridge although he knew of a defective plank therein, where with this exception, the bridge otherwise looked perfectly safe to him. So too in Young v. Madison County, 137 Iowa 515,115 N.W. 23, it is said that if the bridge was defective, and the defect was or should have been apparent to them as reasonably prudent persons, then in crossing the bridge they could be charged with negligence. The rules fairly deducible from the cases are that one is not guilty of negligence in crossing a bridge with a load under which the bridge sags and breaks if one exercised ordinary care in going upon the bridge with his load. That in the absence of special notice of caution, one is not guilty of negligence (want of ordinary care) in going upon a bridge without inspection, if his vehicle, or load is not greater than that taken over the bridge by other parties. One who approaches a bridge with an extraordinary load, that is one appreciably heavier than others have taken over the bridge, or so heavy as to be unusual in the neighborhood, may not assume the bridge is sufficient in strength but owes the obligation to inspect it in the exercise of reasonable care. In making examination, he is bound only by what his senses as an ordinarily prudent man would reveal to him. If after making such examination as a prudent man would do under the circumstances, he reasonably concludes the bridge will carry his load safely, there is no negligence in driving upon, or over the bridge.

Let us examine the instant case in the light of these pronouncements. Negligence, if any, is to be found in this case, must be inferred. No one doubts that in law negligence may be inferred, but there must be facts from which the inference may be deduced. This leads us to a consideration of what facts there are from which such inference may be deduced. We find none except the fact that the bridge caved in under the load, and this is not a case where res ipsa loquitur applies on the matter of negligence.Branch Storage Co. v. Bucks County, 101 Pa. Super. 30. Had it appeared that Wade failed to examine the bridge before driving upon it, or that in examining it he failed to discover weaknesses or defects in it which he should have discovered, and which would have led an ordinarily prudent man to conclude the bridge was not safe, the inference might have been deducible. But there are no such facts here. All the evidence reveals that Wade was careful; that he made a close inspection of the bridge, and that no defects were discoverable. When Wade came to the bridge he stopped, asked Murray, an employe at the coliseum, if the bridge would hold the load, and Murray says he told Wade to look at the bridge and see. That Wade got down under the bridge and examined it. Wade says Murray and he got under the bridge together, and Murray said: "A bridge with stringers as big as that will hold up a load like that easily." Everybody agrees that Wade made much more than a casual inspection of the bridge and concluded it was safe. Campion, a witness called by plaintiff, testified that had he examined the bridge before it broke he would have concluded it was in a good state of repairs. It is conceded no defects could be discovered from an inspection of the bridge. The stringers were in good condition and did not break from the weight of the load. In fact one stringer was used again in the new bridge. The planking running crosswise of the bridge, over the stringers, had decayed from the top, which was not visible, and broke between stringers letting the wheels through and the thump of the axles on the stringers broke them. Campion testified that in his opinion the bridge in the condition it was would have carried a ten ton load easily. Wade and Murray each decided that the bridge would carry the load. There is no evidence that Wade should have known or had any reason to think the bridge would not suffice. The evidence shows that had the cross planking not been rotted at the top, where it was not discoverable; had it been in as good condition as it appeared to be upon examination, the bridge would have carried the load. The stringers would not have broken had not the planking given way and dropped the loaded truck on the stringers. I find no basis for any inference of negligence. What should Wade have done that he did not do to relieve himself from the imputation of negligence? But assuming that negligence could be inferred from the fact that the bridge broke under the load, such inference is completely dissipated by the other evidence, uncontradicted, and showing an absolute lack of negligence.Richards v. Oregon Short Line Railroad Co., 41 Utah 99,123 P. 933; Christensen v. Oregon Short Line Railroad Co.,35 Utah 137, 99 P. 676, 20 L.R.A., N.S., 255, 18 Ann.Cas. 1159;Goss v. Northern Pac. R. Co., 48 Or. 439, 87 P. 149.

It is argued that this was a private bridge, and Wade was a trespasser thereon. Of course the owner of a private bridge is under no obligation to keep the bridge in good and safe repair for use by the public at large, if he has given no invitation express or implied to use it. Carson Lime Co. v. Rutherford,102 Va. 244, 46 S.E. 304. But such rule has no application in the case at bar. Here no attempt is made to hold the bridge owner to any liability for defects in the bridge, no claim is made that the Livestock Ass'n had or should have had, any knowledge that the bridge was unsafe. Both parties agree there was no evidence of any defects in the bridge until after it collapsed. The only question here is, assuming the bridge to have been as it appeared to be when Wade arrived there, was it negligence on his part to drive upon the bridge? What constitutes actionable negligence is the same as far as the user is concerned, whether the bridge be a public or a private one, subject only to the qualification above set out, that one may assume a public bridge sufficient under conditions which would require him to stop and examine a private bridge. This statement assumes one is not unlawfully attempting to use the bridge, and as pointed out supra, on the record before us, Wade's use of the bridge was a lawful use.

The argument is advanced that there were two other bridges Wade could have used. Had an examination of this bridge showed defects or raised doubt in Wade's mind as to the capacity of this bridge, the fact that there were other available routes might enter into the question as to whether he was negligent in crossing this one. But since an examination was made, no defects appeared, and the conclusion of all was that the bridge would safely carry the load, the matter of alternate routes is immaterial. Board of Com'rs of La Porte County v.Ellsworth, 9 Ind. App. 566, 37 N.E. 22.

This action is one brought by the owner of the dominant estate for damages to the right of way, against one using the roadway by the approval and consent of the servient estate. This was an easement, or bridge and roadway, used by both the dominant and servient estate, according to the terms of the instrument of its creation. Where the easement is thus used, an equitable distribution of the burden of maintenance and repair must be made. Lamb v. Lamb, 177 N.C. 150, 98 S.E. 307; Stevens v.Bird-Jex Co., 81 Utah 355, 18 P.2d 292; Bina v. Bina,213 Iowa 432, 239 N.W. 68, 78 A.L.R. 1216; Schuricht v. Hammen,221 Mo. App. 389, 277 S.W. 944. It follows that the judgment should be reversed with costs to appellants.