Ogden Livestock Shows, Inc. v. Rice

MORRISON, District Judge. This is an action at law to recover damages for injuries alleged to have been sustained by plaintiff as a result of *229 the acts of the defendant Wade in driving his truck loaded with cement over a bridge belonging to the plaintiff. The action is brought upon two counts. The first count is based upon the theory of trespass and the second count is based upon the theory of negligence. The cause was tried to the court sitting without a jury and from a judgment in favor of the plaintiff and against the defendant on plaintiff’s second count defendant Wade appeals. Briefly, the facts are as follows: At the time this cause of action arose and for more than fifteen years prior thereto the plaintiff, Ogden Livestock Shows, Inc., was the tenant in possession of certain land in the vicinity of the Ogden Union Stockyards. Upon this land plaintiff had constructed a coliseum for the purpose of conducting an annual livestock show. A large irrigation canal passed immediately in front of the building to the south and adjacent to a public highway over which plaintiff had constructed a wooden bridge to enable visitors to the show to gain access from the highway to the coliseum. The bridge had a span of approximately 38 feet and a width of approximately 20 feet and was supported by five wooden beams, 18 inches by 12 inches. There were no supports under these beams. There were two bridges owned and maintained by the Union Stockyards over the same canal. At least one of these bridges was of a steel and concrete construction. One was a short distance to the west and the other a short distance to the east of the bridge belonging to plaintiff and were used by the Union Stockyards and the public gaining access to the stockyards. During the first part of December 1941 defendant Rice was performing certain work under contract for. the Union Stockyards on its property, and had purchased certain cement from the Burton-Walker Lumber Company at a price per bag delivered on the job. Defendant Wade had been engaged to deliver this cement and in so doing attempted to cross the bridge of the plaintiff. Before Wade drove upon the bridge he got out of his truck, made an inspection of the bridge and had some conversation with one, *230 Murray, an employee of plaintiff who was working at the coliseum. When Wade drove his truck over the bridge it collapsed. The testimony showed the weight of the truck to be 6300 pounds and that the load consisted of 240 bags of cement weighing 94 pounds each, or a gross load weight of approximately fifteen tons. At the conclusion of the plaintiff’s case the court on motion of plaintiff dismissed the complaint as against defendant Rice. ’ The trial court entered judgment against the plaintiff and in favor of defendant Wade on plaintiff’s first count in trespass, and entered judgment in favor of the plaintiff and against the defendant on plaintiff’s second count in negligence for the amount of $900. The appellant, defendant Wade, makes four assignments of error which may be grouped and summarized as follows: (1) That the court erred in granting judgment in favor of plaintiff and against defendant Wade on plaintiff’s second count. (2) That the court erred in the admission of certain testimony. (3) That the judgment for $900 is not supported by the evidence. In its cross assignment of error respondent attacks the action of the court in dismissing its first count based upon the finding that defendant was not a trespasser when he drove his truck upon the bridge of the plaintiff. It is a principle too well embedded in the law of this state to require extended discussion that in an action at law, the findings of the trial court are conclusive and may not be disturbed by this court if there is competent evidence to support them. Yowell et al. v. Ogden State Bank, 75 Utah 312, 285 P. 285; Western Union Telegraph Co. v. Matthews et al., 74 Utah 495, 280 P. 729; Harper v. Tri-State Motors, Inc., et al., 90 Utah 212, 58 P. 2d 18; Vadner v. Rozzelle, 88 Utah 162, 45 P. 2d 561; Greco v. Gentile, 88 Utah 255, 53 P. 2d 1155; Van Leeuwen v. Huffaker, 78 Utah 521, 5 P. 2d 714. *231 The trial court made and entered its finding number two on plaintiff’s second count, as follows: “2. That during the forepart of December, 1941, the defendant Earl Wade carelessly and negligently drove and operated said heavy truck loaded with cement with a total gross weight of 29,960 pounds over and across said bridge, thereby breaking the same and causing said bridge to collapse; that the said defendant Earl Wade was a trucker by profession; that he knew the weight of his load and before passing over said bridge knew, or by the exercise of reasonable care and diligence, should or could have known that said bridge, by reason of the nature and form of its construction, was not strong enough to support or sustain a loaded truck of such weight and that said bridge was neither constructed nor designed to carry loads of that kind or character thereon, but, notwithstanding such knowledge on his part, the defendant carelessly and negligently as aforesaid drove said truck over said bridge; that defendant, notwithstanding he knew of the excessive weight of said load, further carelessly and negligently failed to ascertain from plaintiff or its officers and agents whether or not said bridge was capable of sustaining said weight before attempting to cross the same.” If there is any competent evidence from which the court was justified in concluding that the defendant Wade was negligent in driving his truck upon the bridge, the finding must be sustained and for this purpose we must refer to the testimony. The evidence showed that defendant Wade was a trucker by occupation, that he had considerable experience hauling heavy loads over highways and bridges of various construction, that he knew the weight of his load to be approximately fifteen tons, that he thought it to be an unusually heavy load, that there was a question in his mind as to whether the bridge would hold up under his load and he therefore stopped his truck, got out and observed the bridge both from the surface and from underneath. The evidence further showed that the bridge was of wooden structure throughout, supported by five 12 x 18 inch beams or stringers, over a 38 foot span and that there were no supports of any kind under these stringers. Defendant Wade also testified that from all outward appearances the *232 timber seemed to be well preserved and solid and that after his inspection he concluded that the bridge could be safely-crossed with his load. The testimony also shows that Wade knew of the presence of the other two bridges in close proximity to the plaintiff’s bridge and of their general construction. Wade also testified that he was aware of the fifteen ton load limit posted on the steel viaduct over the railroad yards as he approached the plaintiff’s bridge and the general structure of the viaduct with respect to braces and supports. We are not in disagreement with the holding of the court in the case of Board of Com’rs of Allen County v. Creviston, 133 Ind. 39, 32 N. E. 735, cited by appellant to the effect that if the load which one proposes to transport over a bridge is an undue or unusual one there is a duty on his part to make some investigation or examination. The fact that Wade did stop and make what must be admitted to amount to more than a casual or superficial examination of the bridge, indicates some apprehension on his part and lends credence to his statement that his load was an unusually heavy one. There is nothing in the record which could lead to the conclusion that Wade failed to discover any defects in the bridge itself which a reasonably prudent man should have discovered, but were the conclusions reached by him and his subsequent attempt to cross the bridge such as one would expect of a reasonable and prudent man ? The thirty-eight foot span of bridge; the five unsupported stringers under the bridge; appellant’s knowledge of the weight of his load; his knowledge of the close proximity of two other bridges of unquestioned strength easily accessible to him; his knowledge of the general construction of the steel viaduct and its load limit, are all circumstances which must be taken into consideration by the trier of the facts. The court had an opportunity to see and hear the witnesses and determine from all the testimony whether an ordinary man under all the circumstances attending the incident would have proceeded to cross this bridge with a truck load of cement such as defendant had. The court *233 found this to be negligence. Reasonable men might differ in their conclusions as to whether the facts in such a case would amount to negligence, but we must conclude that there is sufficient evidence to support the trial court in its findings. The measure of damages sustained through the destruction of improvements to real estate which have no market value is the fair and reasonable value of the thing destroyed at the time of its destruction. Cleary v. Shand, 48 Utah 640, 161 P. 453; Wichita Falls & N. W. R. Co. v. Gant, 56 Old. 727, 156 P. 672; St. Louis, I. M. & S. R. Co. v. Weldon, 39 Okl. 369, 135 P. 8; Gosliner v. Briones, 187 Cal. 557, 204 P. 19. Appellant contends that it was error to permit the witness to testify to the cost of the construction of the new bridge and the difference between the cost of the new bridge (less the cost of the foot bridge) and the value of the old bridge represented the betterment or increased value of the new bridge over the old. In the case of Kennedy v. Treleaven, 103 Kan. 651, 175 P. 977, 978, 7 A. L. R. 274, this question was discussed and the court said: “There is no universal test for determining the value of property injured or destroyed, and the mode and amount of proof must be adapted to the facts of each case. * * * If there be no market value, then other criterion of value must be found, and the best evidence which can be obtained must be produced to show the elements which enter into the real value. * * * The cost of replacing the building, making a proper deduction for its age, utility, use, and condition, is a better measure of what the property was fairly and reasonably worth at the time it was destroyed.” We cannot say that the trial court was in error in admitting this testimony as one of the factors tending to establish the value of the bridge at the time of its destruction. Plaintiff called one, Campion, a general contractor of twenty years’ experience, who testified that he was acquainted with the bridge that had been destroyed, its *234 general construction and condition. He also testified that he constructed a new bridge to replace the one that' had been destroyed and that the cost of the new bridge also included the cost of constructing a foot bridge alongside the new bridge. Over defendant’s objection the witness was permitted to state that the total cost of constructing the new bridge and the foot bridge was $1352 plus .$89 for surfacing the bridge after it had been constructed. This was in addition to one beam of the old bridge that was used in the construction of the new one. He also testified that the estimated cost of constructing the foot bridge was $250. The witness was then asked if he were in a position to give an opinion as to the value of the bridge immediately before it was broken after giving due consideration the usual life of bridges, cost of replacement, etc. His answer was as follows: “Well, then, I would say the bridge — just as a guess, is all I could do — would be worth eight or nine hundred dollars.” He was asked again whether that amount was his opinion to which he replied that it was. Appellant contends that the value of $800 or $900 was just a guess and is not sufficient to sustain a judgment for any amount and particularly for $900. From the testimony given we conclude that the answer made by the witness must be taken to mean that from his experience as a builder, not having specific detailed information with respect to the bridge, but considering the replacement costs, that it was his best judgment the value of the bridge was somewhere between $800 and $900. The testimony of the witness that the value of the property destroyed was $800 or $900, would seem to imply that he did not know whether one amount was more accurate than the other. In such case the higher amount would not preponderate over the lower amount and it would seem that the court would be bound to assess the damages at the lower figure. *235 We conclude that there is no substantial evidence to support the verdict for $900 or any amount in excess of $800. The verdict must be reduced to $800. Having reached these conclusions it is unnecessary that we consider respondent’s cross assignments of error. It follows, therefore, that the judgment of the District Court as modified should be affirmed, respondent to recover its costs.