Pennock v. Newhouse Realty Co.

I think that while the complaint may be inartfully drawn, and perhaps too generously assigns every omission conceivable under the circumstances as negligence, it sufficiently puts the defendant on notice of what it intended to charge as proximate causes of the injury. The complaint is good even tested by the rules laid down in the prevailing opinion. The complaint in this case did not allege mere possession of a scalding pot of grease. It alleges with great particularity the placing of the hot grease in such position that it created a condition hazardous to this plaintiff, toward whom defendant owed a duty not to expose him to such condition. It alleges "circumstances coupled with possession that brings the passerby in proximity to the dangerous situation." The first part of paragraph four of the complaint, not quoted in the prevailing opinion, sets out in detail the location of the kitchen equipment and avers the necessity for plaintiff to pass through a passageway five feet wide on one side of which protruded two feet into said passageway a stand 18 inches high with the hot grease pot upon it. I cannot see why a description of the stage onto which plaintiff rightfully entered does not sufficiently show or tend to show a hazardous condition. Must the passageway be described by some word as "narrow" or "in close proximity to passersby" to effect a description of a hazardous condition? It has been my impression that if the accurate facts were set up the deductions or conclusions which different persons might take from them was unnecessary. If I describe a tree as two feet through, it would hardly be necessary to add that it was a thick or a thin tree. Those are comparative terms. In this case the jury should be given the right to decide whether the condition of a hot grease pot standing by a three foot passageway was a hazardous condition. It may be admitted that a mere charge of failure to afford protection does not supply the negligence or the hazardous condition, but the whole fact configuration was here set out in detail.

Certainly there should be no doubt that a grease pot so placed might be knocked over by a passerby, even without slipping. Scalding water, hot grease, or boiling tar, although common substances, are fraught with a high degree of possibility for harm. Their very nature requires a high degree of care in handling and placement toward others rightfully on the premises. They may not be required to be kept in the middle of a ten acre lot, but certainly the circumstance of placing a can of hot grease on a stool in a passageway where plaintiff not only had a right but was required by his work to go, did not require a high degree of foresight as to what might happen if he should chance to dislodge it, nor a high degree of foresight that in such a passageway he might dislodge it. The consequences were of a "foreseeable nature and not of an unusual or unexpected character." The books contain literally hundreds of cases where defendants have been held to accountability for consequences less foreseeable. So it is not my intention to discuss the nature of foreseeability. A good discussion of it may be found in the famous debate between Justices Cardozo and Andrews of the Court of Appeals of New York, contained in the case of Palsgraf v. Long Island R. Co.,248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253. This court commented on the tests laid down in said case and made application thereof in the case of Barrus v. Western Union Tel. Co., 90 Utah 391,62 P.2d 113. The consequence of the alleged negligence of permitting the hazardous condition with which the negligent doer is in this case sought to be charged was within the "range of apprehension."

Certainly in this case the plaintiff has assigned, as he well may, two major acts of negligence. The first is the placing of the hot grease in a position where a passerby may encounter it. It is for the jury to say whether the placing of a substance so highly capable of doing great harm did or did not amount to the creation of a hazardous condition. The other act of negligence was the spilling of grease on the floor. The two acts cooperated to cause the result. Subsidiary acts of negligence after creating the hazardous condition were the failure to guard the passerby against it; failure to furnish light enough to permit him to see the spilled grease, the lights being sufficient except for that purpose; failure to place a fixed lid on the can or affix the can to the table. It may be primary negligence to park a car on a very steep hill, but once having done it it is added negligence to leave it out of gear or with the front wheels not crooked toward the curb. We have numerous situations like that in the law.

The opinion asks a few rhetorical questions to illustrate how uncertain are the allegations regarding the hazardous condition. Was it the overcrowded kitchen, the narrow passageway, the slippery condition of the floor, lack of proper lights, the grease, the can, the passageway, what? I can hardly believe that my able associate who wrote the opinion, nor the astute counsel for the defendant, had such difficulty in determining the hazardous condition. By asking questions all around the obvious import of the pleading, the illusion of difficulty in picking out the thing relied on may be created, but no one should have a moment's hesitation in answering that the complaint alleged as one of the acts of negligence the placing of the pot of hot grease on a low table in a passageway where people were required to go so as to constitute a hazard. Paragraph five of the complaint in words mentions "the dangerous location of said hot grease on said stand." It is not the passageway, nor the hot grease, nor the lights alone, but a combination. A bandsaw or a passageway may not in themselves be hazardous, but a rapidly revolving bandsaw, unprotected and near the passageway, most likely would be.

Concluding that the complaint does specify the hazardous condition and that it may properly assign not only the hazardous condition and the spilling of grease as negligence, the combination of which resulted in plaintiff's injury, but also the subsidiary or secondary negligence in not protecting against the hazardous condition, there were sufficient allegations in the complaint to permit evidence of all of these assigned acts of omission and commission charged as negligence. If there was evidence from which the jury could conclude that the injury was caused by any of them, either as the initiator of the plaintiff's career of mishap or as an intermediate cooperating cause, the judge was not in error in instructing on the same.

After reading the complaint, the evidence, and the court's opinion, I gain the impression that we have strained to find error in this record. The members of this court as at present constituted, have all sat on the trial bench. All know the pitfalls which confront a trial judge, the human factors involved in a trial, and the great chance for error in rulings necessarily peremptorily made. We should not strain to find error. A common sense reading of the complaint, giving it the meaning its import plainly carries, presents no difficulty or uncertainty as to the acts or omissions assigned as negligence. The evidence presents ample justification for a verdict in favor of the plaintiff who, going about his business, was seriously injured by the upsetting of a can of hot grease which, judged by his very act of hitting it, must have been accessible to collision with it. It naturally occurs to any thoughtful person that such substances so capable of inflicting frightful injuries should be placed far enough away from a passageway or so protected that there would be little likelihood of any contact.

The strictures leveled against the answers of Dr. Openshaw are supertechnical and of a sort of which any record of human testimony would furnish numerous examples. To contend, as has the opinion, that this plaintiff with one quarter of the surface of his body burned, might be an exception to the doctor's observation that any one so burned would be regarded as a seriously ill person is catching at straws. Giving such weight in an opinion to such unsubstantial contentions will serve to encourage litigants who have received substantial justice in the trial court to take a last chance with the appellate court. While the answers of Dr. Openshaw considered in the opinion were not as direct as might be desired, their common sense meaning was to say that plaintiff was seriously ill and that he had developed a toxic protein substance which might have been serious enough to result in death. The court might have done better to strike them and require a direct rather than an implied answer, but the failure to strike is not prejudicial error. I think the prevailing opinion admits this, but its admonitions attach to the answer an importance far beyond its import. It is not "fraught with serious potentialities for danger." Some latitude for differences in habits of witnesses must be allowed; otherwise the witness would have to be furnished with forms for answering. Defendant had ample opportunity to require the doctor to explain his answers on cross-examination.

Trials of cases are serious judicial inquiries the aim of which is to determine who is right in controversies between flesh and blood people presided over by a judge who is human and witnesses who are usually ordinary people. Rules must be made to fit inquiries under such conditions, and not as if the court were a symposium of philosophers and logicians engaged in a matching of dialetics.

Mr. Justice LARSON, after this opinion was written, filed an opinion which seems to concede the correctness of the principles mentioned in this opinion but concurs in the results of the opinion of Mr. Justice PRATT. He admits that all acts of negligence, whether they initiated the career of mishap or were active or passive contributing agents to produce the final result may be properly charged as negligence and the cause of action founded on the combination of them. While I think his distinction between those negligent acts which increase or modify the extent or nature of the injury and those acts which initiate the career of mishap is philosophically correct, no such distinctions have as yet been made in the law. True it is that where negligence in one particular is alleged as an initiating cause and negligence in other particulars as cooperating causes along the route of mishap contributing to the final result, proof which shows that the mishap was caused or contributed to solely by the acts of negligence which the complaint showed by implication or otherwise were cooperating, without showing that the act alleged as initiating the sequence had anything to do with the cause, cannot sustain a verdict. But I do not see, in view of the evidence, that the jury could have been misled by the instruction that if "defendant was negligent in one or more of the particulars" above set out and "said negligence was the proximate cause of the injury" plaintiff could recover. This for the reason that the jury must have concluded that the course of mishap was initiated by a slipping because all the evidence was that way. It might have chosen to disregard some of those acts of negligence which must of necessity, under the pleadings, have been cooperating causes; but since all the evidence was to the effect that Pennock slipped, it could not ignore the fact that such was the initiating cause.

There might have been some doubt in its mind as to whether the hot pot of grease was knocked over in an endeavor by plaintiff to clutch at something during his fall resulting from slipping while attempting to mount the stool on which it stood or whether he slipped while walking and knocked the pot off and over him. One witness, Floris, in halting English seemed to testify on cross-examination according to the former version whilst plaintiff testified according to the latter version. But Floris, on re-direct, answered questions in such a way as to leave no doubt that a slipping occurred. He says positively that Pennock slipped. At all events, there seems no conflict in the evidence that the plaintiff's course of mishap was initiated by a slipping and not by falling or fainting into the hot grease.

Speaking in a case, the name of which escapes me, Mr. Justice Cardozo, while on the New York Court of Appeals, stated: "Now-a-days we do not require pleadings to be guarded against all possible distortions of perverse ingenuity." To paraphrase with modifications better suited to an honest attempt of this court to arrive at a correct solution in this case, I should say that now-a-days we do not require instructions to be so framed as to exclude all possible interpretations which ingenious jurors and the technical jurist may put upon them.