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Show I MONDAY, MAHCII THE DAILY RECORD Ji'.'il 1 PAGE FOUR In Hie Supreme Court 01 The Stale Of Utah lif I oi in which struck plaintiff would have been enough to cause- plaintiff's injuries. I'hos if resumption of the work with that erih on projection still standing should he defined to constitute negllgc-nc.he was It not that that still dors proximate negligence appear parr, cause oi the- plaintiff's inj uries be cause: the earth projection did not fall. Assuming this prevision applies to the defendant, even though it was not a party to said contract, arid did not sign It, whether or not the architect exercised proper or reasonable judgment, would have to be based upon the upon the testimony ol lay parsers. Yet, testimony of other arrl.tects and the pia'ntlff did rc produce ar.-- architect as a witness. further important problem as to plaintiff's cor trlhutory negligence. He testified in Ins deposition of February 19, 1966, (which was published), that he conside red the area around the light pole dangerous and observed the earth in that area was not sloped and was neat vertical or overhanging. He had been given authority hy the project manager tc Install whatever shorhig he cor, side red appropriate. Although he told Tucker tha1 said area was a hazard, lie was aware of the condition existing around the light pole hut tonk no steps to make the work safer, because- f e considered Mu course, if the condition of this excavation was so obviously dangerous arid unsafe immediately prior to the cave-i- n that any person could recognize the danger, then the trial court could have relied on testimony from lay persons, if sufficient, upon which to base its findings. However, nearly all the mer. workinspector testified ing on the job, including the plaintiff himself, and an that they thought the excavation was safe immediately prior to the accident for the work they were doing. The operator of the dragline, Evan Ashby, testified likewise. Johnathan H. Tucker, when asked if he told Nauman about the loose dirt he saw under the lamp pole, testified that he (Tucker) considered that where plaintiff was, it was perfectly safe; that plair.Hff was at the end of 'he concrete the project manager, testified as tc the that had already been poured. Wai'-ysafety of thn excavation. Likewise, four licensed architects, Ruben, Montmorency, Fd'.ards and Beecher, detendart's president, all testified that the excavation appeared sale. Ruben testif'ed that, the south bank, where the cave-i- r: happened, was sloped eleven feet. Since the depth of the excavation was- aheut twer'y-tw- o feet, the sloping complied with the Industrial Commission's safety requirement. Montmorency stated that. In his opinion the excavation did not constitute a dangerous condition and was safe. Edwards' testimony was that the sloping met Industrial Commission requirements. Beecher testified that observing the excavation immediately prior to the accident it appeared to be safe, and he would not have shut down the work. (i, 350 on lbs.) falling I - - There- is - the-- havi- made excavation sale for li e werk they were deeng. Otherwise, he- co-,.he eu as had since foreman he with it salet before pi ceding work, authority to shore ,is m.u-l- as u c cssary "j make the excavation saft. There Is no showing that lie was ceinpc.lt d to piceicd with the work until this was der.e. Tr. v.ew of Wally's explanation o p.a.ntiff cf the prohle:rns with the excavation and Tucker's Die hazard arcuncl the light pole and that further sJ. pir.g of advice- ccnc in addition to plaintiff's own cbseri.c.ris, the walls would make them saie-rand ol condition of the walls prior to the cave-i- n, plaintiff was fully aw. i l. ar.d that was inexperienced with such excavations plaintiff's arguments ih.jf do the he- was on the accident to and hours nine r.t only prior job relieve him jf his rcsponsib.'it y under the circumstances. - - i - , - alf turn attention to the question whether 'here was violation ol duty on the part cf tin architect. Thi immediate cause of plaintiff's injury w;s the unsupported form which 'he caw r knocked against him. The ( 'dfr( does not show that aryerc cci.eldi n d he mere presence oi the form as it exkted But the important fact is that, whether the to be unsafe before the cave-In- . form should have been braced or removed was a matter of construction method or practice with width the archite.-- had no ryght or duty to interfere. As wp stated when this case w.-,- before us on appeal the lirst time, We i- - s l Of on-si- te , - is true that Harry F. Butcher, project engineer for the C.ty, testified the walls of the tunnel were straight up and down except where it had been sloped a little at the top. However, on cross examination. Butcher conceded that the south hank (where the cave-i- n occurred) had been sloped back as much as ten feet. This practically meets the Industrial Commission r equiremrr.ts. 9 Butcher also testified that although he was at the excavation before ar.d after the he didn't see where the dirt had fallen from. accident on October 17 with T It i.-.k- The. method of i i.st r .ic Ion was a matter solely under the control of the contractor, and the defendant (architect) had no right to interfere with the contractor's execution of the work, . . . oisde the bounds of reasonable care to require the architect other workmen over an the foreman and fifty-eigto scrutinizt c of them did a potentially eleven acre const me. ion s:,. n make ertain that none It would he at t done- - bv ht r Hr lai Com-nissiar- irt's findings and judgment, there must be a condition existed which a i i rc h'i pr.ic'ic ing in reasonably prud locality would have regarded as dan tie rous and tins j isl.iv 'lit c.f closing dowr Mu excavation ig work nr.or to the i.,-- . i l . competent and - cc la. sub.-ia-i: - did not John Holmes, safety Inspector for the Industrial c or.dition of the excavation on the morr .r.g of :.ht give testimony concerning October 17, 1963. Nauinan v. Beecher, supta. dangerous .n ., 3. To suppi. Casper A. Nelser oi thi- Industrial Commission testified that the wails of the excavation were ' real vertical - rather irregular as one may expect with a dragline excavation." M:. Nelson, however, admitted on cross examination that the walls had b..er. sloped about ten or eleven feet on both sides. This would comply substar;ailv, if ret fuilv, with Industrial Commission requirements. me that cldc tl-.- e , John L. Ulibarri, was working just ten eye witness tc the cave-i- n, when the cave-i- n took place. He wht re and area the feet away from on down and the south side; that the walls of the banks the walls were straight up He: a was rot qualified expert; and he had made no prolooked dangerous to him. cult test, nor called .to anyone's a'tf-- i tion Hie condition of the wails. It is to understand why he was w. rklr.g in this excavation if it appealed dangerous concerned foT his own satety. Under those to him, since ho should have i when considered in connect. on with ail of 'he circumstances, his tes'im.'rv. r.o'. evidence in the case, could properly be regarded as substantial evidence that the condition of the tur.nrl was so dangerous that the architei' should have An d.-f-f A Michlgar held: h -t . bc-e-- . . .(Tli sp--sibill'.v of an architect does net differ from hat ol j lawye- - or physician. When he possessts the requisite skill and knowledge, ar.d in the exercise thereof has used his best judgment, h has done all the law requires. The architect is not a warrattcr cl his plans and specifications. The Tesult may show a m'ssk- m defect, although he may have txe-ris- ed : I - the reasonable sk'l. required. This Co.. his treatment, and The law docs ret impose upon a physician or surgeon the duty ot guaranteeing that his treatment will achieve good results, bu'. cr the contrary, the law imposes upon him the duty to employ 'hat care and skill required of men of similar Calling, ar.d under similar cur cumstances. suit ugains an architect, plaintiff's allegaticrs and proof architect failed to meet the standard cf his profession in preparing plans or supervising the work, or (2) that fai.ure to supervise the work properly in accordant e with the terms of his contract resulted in injury. In a must show (1) M.c The i iab' i:: y with. thi star.ciatd ot he lo a: ; v ai d Tl-.- .m r i in:. i gl-- hav- i. '' in.ir a .d a b : io- a 1 i1 ill -- d b al!-. o i.e., Robi rtsr., 39 U 4 14, li7 P. 1068. one foot of slope to each 2 feet of depth. of the rxr.avat.on ancl concluded examined the they wr e sate fo the work they were doing; ard that it was his prerogative and duty as foreman to have any dangerous ondition 'emc-cbedIn view of these facts, and the other abur.dar.' credible evidence that the walls appeared to be safe, it seems entirely ur.rtas orablc to place the responsibility upon hc defendant architec' ro ha'e known that the walls were unsafe and suspended work on the job. On the basis of what we have said herein it is cur that it cannot fa.r y be said hat there is substantial evidence, in the opinion record to support a conclusion that the architect so breached his duty in that regard, r.cr that H.s conduct fell below the standard of care generally observed by archi'ects in the locality. In the absence of ar.y competent proof to support such a conclusion it is necessary that the judgment of the trial court be- reversed. No costs are awarded. s . c - WE CONCUR: t g w .i : - .li.i r hi liu-- the detendants r E. R. Callister, architects' learning, Jr., Justice - 1 1 ..l the same profession in the samelocality, i u: r . I c v F. Henri Henriod, Justice , U-.i- praci ..I ! Janies i d tlsc- duties imposed by law, as they oi d o you, you are not permitted to set up i.u.dard hi your c wr. Thu standard is that set and care ordinarily possessed ar.d t. rh: li : d-.- i lx - 8. 9. Court of Appeals, First District, approved hv tl.i trial court which state d in pa rt: -- - i.i-n- Dis i ot this cvider-.- is the opli ior. ' t : ':- . 1 - imp. i 'l.iisi- i.. wl.i-i- u C,.. f ; i cts is based upon professional negligence qualified in the field can testify as to and ri. possessed by professional men in l:a beer a breach of that standard of care. rch'.-.- i a whiih ' pu'. i f i rt that there is not sufficient hcl.eab!e, to support the trial court's firid.'g ar-- judgment, competent substantial e cvid-r.-.shews that plaintiff was net only warned of particularly because thconditions existing In the trench before the accident, but that he persora.lv It - has held that a doctor was not required to guarantee i :rM.er: - r- known ancl acted upon ?l. ELLF.TT, Justice: (Concurring in the result) concur in the result and in connection therewith wish to state that in my opinion an architect has no duty with reference to the manner in which the contractor perforins li:s work. The architect represents the owner, and his duty is to see that the construction is in accordance with the plans and spccilications and is safe for the use for which it is intended. He has no right to shut down a job because be may think there is a better way to dig a ditch or to shingle a roof than that chosen by the contractor. The Industrial Commission has an interest in laborers and a duty to see that they have a safe place to work, but that is not a function of an architect. I i i o.i r a i i.: w 1, M.i if, i r .. ii d'- - . hi wnrk, C' 1. I' ,,:1 :i t ra " ' Bayne v. kii. ? 'oi i . i i i .Id.--- pr i.ii i 2 a in the contract between the owners : andor . a 1. . c t 'he city engine t i., mu t ssary to close down the work c i. i im-iaia s arising during the progress of .., may he i ijnstni.'i to be cl.ingercjs. . . Mio. .hn i i in.pl v ., iid hi siial i s tr p all .j! "ons . . i c: g : : : oi 1 mil, .:!. ' oruiis . in writ ing are given. oj . .. IMN.iV, llU2, I00S (Mich. 1917) M.isi.u., JS H 2d 38 i, 123 p 2d 663 (1967) See also March v. lb nibej-It) U 2d 10, p 2d 1 08; Edwards v. J 2d 1021, 1029, Clark 96 U 121, 0 30; Baker v. Wycofl 95 U 199, 79 p 2d 77- Bax', r . Snow S V 217, 2 P 2d 257; Andeisi.r. v Nixcn 5. Die . 1. Section 35-1-- U.C.A. 195 3 1 3 - 10-- 6. 7. 262, 3't p 2d .' 16. Covll v. Ri.t,i n h Cc. As-.'Paxton v. Alameda County, U TUCKETT, Justice dissents, 1 I iat.-s- 25'l , I U'l S. H, 2iM50 (Ca. 9 $4 (Cal. App. 195 2d A 3) op. 1965) CROCKETT, Chief Justice, having disqualified himself does not participate herein. I I 4 |
