I dissent.
It appears that about the first of March, 1933, Mr. Maughan, superintendent of the Logan City light department, and a member of the Citizens Relief Committee, directed an employee of his department, also a committee member to supervise the removing of a large tree standing on *Page 70 the property of the defendant, Anderson Lumber Co., on the South Main Street of Logan City, which tree was on the east side of the street and practically upon the property line and just inside of the fence marking the east boundary of the sidewalk. The tree had been donated by the Lumber Company to the Citizens Relief Committee, to be felled and cut into firewood for the needy. A short distance north of where the tree was located, the store building of the Lumber Company, facing west and fronting on the main street, was situated. South of the store building and extending some distance to the south and east, the area is open and used as a yard for keeping wire, gates, and other material. The fence, running south from the store building and upon the east boundary of the sidewalk, consisted of a heavy woven wire 47 inches in height, attached to and supported by posts placed about eight feet apart and by a two-by-four board upon the top of the posts. The tree was about eight feet north of the south gate and so close to the fence that it had grown over part of the wire. In order to cut down the tree, it was necessary to remove part of the fence. Mr. Kent and those assisting him, unfastened the ends of the wires from the post south of the tree and adjacent to the gate and also from the post next north. Mr. Kent then pulled the wire, so unfastened, back northward on the outside or sidewalk side of the remaining fence for a distance of approximately 16 feet from the second or pivot post.
Mr. Kent claims that he pulled the unfastened wire back tight and fastened it to the remaining fence. There was considerable snow upon the ground — large amounts having been pushed by a snow plow to the sides of the sidewalk and against the fence, so that the loose end, when pulled out and back against the solid portion, bulged out toward the paved sidewalk that ran parallel with the west side of the solid portion of the fence. Snow prevented the fastening of the bottom wires, so the top wire and third and fourth wires from the top were fastened. *Page 71
Parallel to the fence, and three feet westerly therefrom, is a paved portion of the sidewalk, the paved portion being about six feet wide; there is a parking space between the west side of the pavement and the curb about twenty feet wide, making the total width of the sidewalk about twenty-nine feet. The spaces on either side of the paved sidewalk were practically upon the same level as the paved sidewalk. The fence was dismantled from the first of March until some time after the 18th of March, 1933, On the latter date, the plaintiff sustained the injuries which form the basis of his alleged cause of action herein.
At about 11:30 P.M., of the 18th of March, plaintiff and a companion by the name of Lundberg were walking south upon the paved portion of the sidewalk above described; as they reached a point a short distance north of where the tree had stood, plaintiff's left foot became entangled in the loosened part of the wire fence, as a result of which he was thrown to the pavement and sustained injuries to his head and body.
This second trial was had to the court upon stipulation that the cause be tried to the judge sitting without a jury. The cause was so tried. At the close of the trial, the court took the matter under advisement and later rendered judgment in favor of defendants. Findings of fact and conclusions of law were made. Judgment was entered thereon. This appeal was based upon alleged errors in those findings.
The assignments of error attack specifically parts of three of the findings, numbered 6, 7, and 9. Finding No. 7 reads as follows:
"That the loosened portion of said fence, folded back as hereinbefore found, was drawn back northerly along the stationary portion of said fence for the same distance from the pivot post upon which it was folded as the said loosened portion had extended southward from said pivot post while in its stationary condition, and the said folded portion of said fence along its whole extent stood approximately upright against the stationary portion thereof along which it was folded and at approximately the same height, the bottom thereof protruding not to exceedfrom six to ten inches out from the stationary portion of *Page 72 said fence, and was fastened to the said stationary fence by twisting, by means of pliers, the ends of the loosened wires of the first, third, and fourth strands thereof around the corresponding wires of the stationary portion of said fence; that neither the defendant, Logan City, nor the Anderson Lumber Company, was guilty of any negligence in the manner in which said fence was folded back and fastened, but the same was folded back and fastened in a reasonably careful and prudent manner; thatthe bottom portion of said fence as it was so folded back andfastened did not extend out upon the said paved sidewalk or anypart thereof and said fence did not constitute any hazard to pedestrians using said sidewalk; that it remained insubstantially the same position and condition from the time itwas originally so folded back and fastened till some time after10 o'clock P.M. of the day upon which the accident herecomplained of occurred." (Italics added.)
Among others, objection is specifically made to the following part of the above finding: "that it [the fence] remained in substantially the same position and condition from the time it was originally fastened till some time after 10 o'clock P.M. of the day upon which the accident here complained of occurred." It is to be observed the court found that the part of the fence that had been loosened and folded back stood upright and protruded not to exceed six to ten inches from the stationary part of the fence, as originally fastened.
From this the trial court seems to have concluded that the loosened part of the fence protruded only a short distance on to the sidewalk and that defendants were free from negligence. The court may have also concluded that because the plaintiff had alleged in his complaint that the loosened wire fence protruded over and upon the paved portion of the sidewalk, and the plaintiff was at the time of the injury walking upon the paved portion, that it was incumbent upon him to prove that the wire extended over and upon the paved portion of the sidewalk. At first thought it may appear that plaintiff having alleged that the wire fence obtruded or extended over or upon the pavement, that he was limited to such proof; and that until the wire reached the paved portion of the sidewalk, in so far as allegations are concerned, no negligence is charged in the complaint, nor *Page 73 is he entitled to recover unless the wire is proved to have obstructed that portion of the sidewalk. Such is a literal construction. It is not disputed that there was three feet of sidewalk space between the east line of the paved portion and the undisturbed fence or fence line. It was alleged that Kent, "with the consent, knowledge, permission and acquiescence of the defendant, Anderson Lumber Company, unnecessarily and unreasonably folded said net wire back upon itself in such a negligent and careless manner that a part of said net wire where it was folded, as aforesaid, projected from a distance of about one foot out, over and upon the paved portion of the said sidewalk, which is one of the public sidewalks of Logan City, thereby making it hazardous and dangerous for pedestrians to pass to and fro upon said sidewalk in this, that the bottom part or portion of said net wire, at the place where it had been dismantled as aforesaid, projected further out on said sidewalk than did the top thereof so that pedestrians using the sidewalk in a lawful, careful and prudent manner would be likely to catch their feet on the bottom of said net wire."
Such allegation charges an obstruction upon the sidewalk and would admit of proof of obstructions upon any part of it from the fence line to "about one foot over and upon the paved portion of the said sidewalk." The fact that the loosened wire was upon one portion of the sidewalk at one time and upon another at other and different times, but at all times for a period of 18 days was extending out and upon some portion of the sidewalk set apart or properly provided for use of pedestrians, was sufficient to charge the defendants with knowledge of the condition and of its character. This is emphasized when we consider that it is not disputed that it was a city employee, upon time paid for by the city or an agency furnishing money to the city for the purpose, who first created the situation and was at all times cognizant of the conditions. The defendant company consented to the loosening of the fence, and, during the whole period, could not have been other than familiar with the *Page 74 facts. Every witness testified that the fence protruded over and upon some portion of the sidewalk. There is complete agreement upon this point. Some give one distance, some another. Some did not see the wire upon the sidewalk at all — illustration of negative testimony arising from failure to observe. What one does not see is not very substantial evidence of what is there, as compared to the evidence of another who has actually seen what was there at the time and place in question.
There were over forty witnesses testified in this cause. Not all of them as to the location or position of the loosened part of the fence. Some, as indicated, did not see the loosened part. The following witnesses testified as to their knowledge of the position and condition of the fence:
Emil Sjostrom:
"Q. What did you notice with respect to a fence along the west boundary of the Anderson Lumber Company property? * * * A. I was walking on the inside, and as I was walking, my foot just ticked the fence. Q. Describe a little more in detail what you saw there, what fence you have reference to? A. There was a fence on the sidewalk, in my judgment, it seemed to be out, oh, seven or eight inches, or so. Q. Out where? A. Out on the sidewalk. Q. On the paved part of the sidewalk? A. Yes, sir, on the paved part of the sidewalk."
Hyrum Jeppson:
"Q. As you came to the Anderson Lumber Company property, what did you see with respect to a fence? * * * A. As I was walking down, I walked right into the fence, and stopped when I got to the end of the fence, and took it and threw it out of the way. * * * Q. Where was the fence with respect to the paved portion of the sidewalk that you were walking on? A. I should judge the end of it was from a foot to eighteen inches over on the pavement. Q. What part of the fence did you come in contact with? A. * * * I come in contact with the end of the fence. Q. Can you describe whether or not a part of the fence was already standing? * * * A. The fence was just tipped over onto the sidewalk, and also right smooth along the sidewalk. I just got hold of it and threw it right inside of their lot."
Lora Cazier:
"Q. Where were you walking with respect to the paved part of the sidewalk? A. We walked up right up the center of the sidewalk, that *Page 75 is the two of us together, yes, sir, and when we came to the fence, it was projecting on the sidewalk, and we had to walk out around in order to get past. Q. Do you remember which end of the fence? A. If I remember right, it seemed like it was kinda bulged, one end was loose, like. It was just kinda bulged out on the sidewalk, if I remember correctly."
Warren K. Burnham:
"Q. Will you describe in a little more detail where the fence was with respect to the snow? A. I have alreday stated that the snow had been pushed off part of the walk, of the sidewalk, between that and the fence, as well as the other side. The fence having been removed was laying with a part of it on this snow that was dug up. It wasn't loose snow. It was a bank of snow, a part of it on the paved walk and part of it on the snow, between that and the fence. Q. You mean part of the wire? A. Part of the wire. Q. How far did that wire extend over the walk? * * * A. From a foot to eighteen inches, to my best judgment, on the paved part of the walk."
Charles Jenkins:
"Q. What did you do there at the scene of the accident? A. In examining Mr. Jensen my foot caught in a wire. There was a wire there. Q. How is that? A. In examining Mr. Jensen, as to what condition he was in, my foot caught in a wire, as I testified before, and the toe-cap of my shoe was cut in a wire that was there. It was dark night, at that time of night, and there was no regular lighting in the immediate neighborhood there. I could not testify that I saw it, but I know it was there, because I stepped into it. Q. Where was that wire when you stepped into it? * * * A. It was on the parking where Mr. Jensen was."
Alfred Jensen, plaintiff, testifying as to an observation about two weeks prior to the accident, answered as follows:
"Q. Now as you came down by the Anderson Lumber Company property describe what you saw at that time? A. Mr. Peterson and I were walking along, we had to swerve to the right in order to avoid coming in contact with a net wire fence that projected out on the sidewalk. * * * Q. Describe, if you can, a little more in detail the nature of this fence, how it looked, and where it was placed. A. As we came on, after passing this wire, we had to walk very closely between this wire and this west bank of snow, that is, we came very close together, and after passing this bulge in this wire that projected on the sidewalk, I turned around, and I looked at this wire, and it greatly leaned *Page 76 and went closer to the edge of the sidewalk as it went north, and it was hooked over the wire fence that had never been disturbed * * *"
With regard to the night of the accident, Mr. Jensen related the following:
"Q. Describe what happened as you proceeded south on that walk? A. Mr. Lundberg and I were busily engaged in conversation, and as we walked along my foot became in contact with a wire, and it threw me around till I faced the north, and I heard a crash from this wire, and I was thrown violently to the pavement."
Other testimony shows plaintiff was rendered unconscious by the fall and did not regain consciousness for some time after being taken to a hospital.
D.V. Hess:
"Q. Describe what you saw there with respect to a wire fence? A. There was a net wire on the sidewalk. Q. When you say the sidewalk, what part of the sidewalk do you mean? A. On the pavement. * * * Q. Tell us about how far it extended over the sidewalk? A. Well, I can't recall whether it was clear over the sidewalk, or halfway. It was on the sidewalk. That is all I can tell you."
Samuel Weston:
"Q. Will you describe what you saw with respect to the fence? A. The fence had been cut down and passed north and hooked onto the other fence further north, the part that had been loosened. * * * Q. * * * Did you notice where the bottom part of the fence was with respect to the sidewalk, the paved sidewalk? A. Sometimes it was nearly over to the walk; other times it wasn't so far. It was also stationary. Q. It was in a different position at different times as you went by? A. Yes, sir. Q. Did you observe it at any time when it was extended over the sidewalk? A. It was out on the edge of the sidewalk at one time, I know. * * * Q. You say it was hooked over the other fence; describe what you mean by that a little more in detail, so we can get a picture of it? A. The top wire of the fence which had been taken from the post was horizontal, or was loosened, and was hooked over the top of the wire of the same fence where it had been took further north. Q. Was that the only place that it was fastened that you observed at that time? A. Yes, sir. Q. When you say hooked describe that a little more? A. The top wire is a little heavier than the other wire. It was put in a hook shape and put over the fence back about *Page 77 two rods from the tree, over the top wire of this same wire only further back."
James B. Drinkwater:
"Q. Now, will you describe what you saw and what occurred on that occasion as you passed the Anderson Lumber Company property? A. As I walked up the street, having been down south, towards the south end of the city, I ran into the same wire, enough to tell me, on my shoe. Q. Where were you walking? A. I was walking on that sidewalk. Q. You mean the paved walk? A. I won(')t say. I suppose it was paved under the snow. Other people have walked there at other times. I came along at night, and walked in their spaces. * * * Q. What occurred when you caught your foot in that mesh, or that wire? A. Well, I anticipated that I could get a spill, but I managed to save myself, and extricate myself * * *."
Abraham Lundberg:
"Q. As you proceeded down the street, did anything of an unusual nature happen? A. Yes, sir. * * * When we got down there by, somewhere by the Anderson Lumber Company, why, all at once he (Alfred Jensen) fell down, right square in front of me. Of course, at that time, I didn't know just what was wrong. So I investigated. Of course, he was laying there in the net wire, tight around his feet. The wire came around by the ankle. Q. Did you see his foot in the wire? A. Yes, sir. * * * It was just the whole foot went through the wire, and the wire was tightened up around right by the ankle."
Joseph H. Kent, witness for defendant:
"Q. Now, what would you say, how far would you say would be the farthest that any part of it (the fence) would probably be out from the straight line of the fence (stationary portion)? A. The lower part of it would be probably be out (from the straight line) between six or eight inches from the post. * * * Q. Question: `As you were about to replace the fence, he (Nyman) requested you to leave it down?' Answer, `Yes, sir.' Question. `And did you leave it down?' Answer, `Yes, sir, I fastened it back again, so it would not be loose.' Do you remember answering that (in the former trial)? A. I don't recall that. Yes, I believe I do." (Parenthetical remarks and words added.)
Warren Schow, witness for defendant:
"Q. You didn't examine to see how the fence was fastened? A. Only that it was hooked around the wire." *Page 78
Frederick Gibbins, witness for defendant:
"Q. Tell us how that was extending relative to the other fence? A. It was pulled back to the wire, was cut down and hooked up with the top wire. It was fastened, as tight as anybody could pull it with their hands."
Other witnesses gave testimony as to the loosened wire being close to or near the undisturbed portion of the fence. Much was said by witnesses as to the manner the loosened wire was attached to the other part of the fence.
From the day the fence was taken down until the day of accident, occurring about 11:30 P.M., of the 18th day of March, 1933, the loosened part extended over and upon some part of the sidewalk within the alleged limits and used portion, either paved or the portion provided for pedestrians by means of removing snow with a snow plow. There is no conflict in the evidence as to that matter. The prevailing opinion takes the position that conflicts arise over the distance the loosened fence protruded upon the sidewalk from the undisturbed fence line. An examination of the evidence reveals no such conflict. Witnesses who testified that the fence was upon the sidewalk observed the condition at times when the fence was so protruding. Other witnesses testified to seeing it when it was not. No witness giving a distance different from another witness was present at the time testified about by such other witness. The only basis upon which the testimony may be harmonized and a finding made according to the evidence is that the loosened part of the fence was movable and at times its location changed, and making allowances for estimated differences in distance that the loosened wire sometimes extended over the paved portion of the sidewalk, sometimes not. Such should have been the finding under the evidence. Whether such a finding would have changed the judgment is not before us. The conclusion, however, seems unescapable that there existed a potentially dangerous situation, that was threatening and might at any time become dangerous to the safety of pedestrians *Page 79 using the sidewalk, and in the present instance did so. Both the defendants had knowledge and notice of the situation as revealed by the evidence.
The fact that a person is injured because of some obstruction or other defect in a sidewalk is not evidence of itself that the municipal corporation was negligent in the maintenance of the sidewalk. Nor is such corporation an insurer of pedestrians using its streets and sidewalks. Generally it is incumbent upon the city to keep the center space thrown open to the public for a sidewalk in a condition reasonably safe for pedestrians who may have occasion to use it. Quoting from the headnote in the case ofCoffey v. City of Carthage, 186 Mo. 573, 574, 85 S.W. 532, which reflects the holding of the case:
"A pedestrian has the right to assume that the sidewalk is in a reasonably safe condition, and to act upon that assumption."
The case of Tucker v. Salt Lake City, 10 Utah 173,37 P. 261, was a case in which a request was asked directing the jury that if they found from the evidence that the sidewalk where plaintiff was injured was of sufficient width and in such safe condition that by the use of ordinary care injury could have been avoided, they must find for the defendant. The court there said [page 262]:
"The court properly refused to give said instruction, because it was an assumption on the part of appellant that as a matter of law the whole width of the sidewalk need not be in good condition, and that a city is not compelled to keep the whole width of the sidewalk in good condition. That is not the law. `Where a city opens a sidewalk to public travel, it is bound to keep every portion of it in repair.' Roe v. City of Kansas [100 Mo. 190], 13 S.W. 404; Morrill, City Neg. 67;Brusso v. City of Buffalo, 90 N.Y. 679. All persons using streets and sidewalks have the right to assume that they are in good and safe condition, and to regulate their conduct on that assumption. Kenyon v. City of Indianapolis (Ind.), Wils. [129], 139; Gibbons v. Village of Phoenix (Sup.), [61 Hun 619], 15 N.Y.S. 410; Hopkins v. Ogden City, 5 Utah 390,16 P. 596." (The instant case does not require us to go so far.) *Page 80
The statute of Utah gives broad powers over streets and sidewalks, especially as to encroachments. Revised Statutes Utah 1933, 15-8-11:
"They may regulate the use of streets, alleys, avenues, sidewalks, crosswalks, parks and public grounds, prevent and remove obstructions and encroachments thereon, and provide for the lighting, sprinkling and cleaning of the same."
15-8-23: "They may regulate and control the use of sidewalks and all structures thereunder or thereover; and they may require the owner or occupant, or the agent of any owner or occupant, of property to remove all weeds and noxious vegetation from such property, and in front thereof to the curb line of the street, and to keep the sidewalks in front of such property free from litter, snow, ice and obstructions."
The Supreme Court of Oklahoma, in the case of City ofOklahoma v. Meyers, 4 Okla. 686, 46 P. 552, 553, quoted from a Kansas case, Langan v. City of Atchison, 35 Kan. 318,11 P. 38, 57 Am. Rep. 165, as follows [page 554]:
"`The decisions in this state are numerous that cities having the powers ordinarily conferred upon them respecting streets and sidewalks within their limits owe to the public the duty of keeping them in safe condition for use in the usual mode by travelers, and are liable in a civil action for injuries resulting from the neglect to perform this duty.'"
In a suit against the District of Columbia by a woman who was injured by catching her foot against a water plug which projected several inches above the walk, the Court of Appeals of the District held as follows:
"The sidewalks of the City of Washington extend from the curb line bounding the carriageway of the street, to the building line of the houses. * * *
"Then, as to these water plugs, they are put down by the municipality, and the adjacent owner has no control over them, and no right to interfere in any manner with them, except by permission of the municipal authorities; and whether they are placed in the main side walk or in the portion of the sidewalk leading to the house, if they are placed in either, it is the duty of the municipal authorities to see that they do not become dangerous obstructions to those having occasion to use the sidewalks." Dotey v. District of Columbia, 25 App. D.C. 232. *Page 81
In a Georgia case, City of Atlanta v. Milam, 95 Ga. 135,22 S.E. 43, plaintiff tripped over an iron grating adjoining a building (for the admission of light and air into the basement). The city's liability in the case of this obstruction was defined as follows [page 44]:
"While, of course, in most American cities, water plugs, telegraph and telephone poles, trees, and other things, are allowed upon the margins of sidewalks, and pedestrians, therefore, are not expected to use such portions of the same as are occupied by these obstructions, still there can be no doubt, under the rules of law now settled by repeated adjudications in this and other jurisdictions, that the city authorities mustkeep in a reasonably safe condition all parts of its sidewalkswhich are intended to be used by the public. It may often happen that in a particular locality a comparatively narrow portion of the sidewalk, on either side or in the middle of it, is much more generally used than other portions of the same; but this does not relieve the municipal authorities from liability for negligence in permitting dangerous obstructions to be continuously maintained in places upon sidewalks over which the public have aright to pass, merely because those places are not so much used as others." (Italics added.)
The case of Bills v. Salt Lake City, 37 Utah 507,109 P. 745, discusses the law at considerable length from the standpoint of injury arising out of an accident resulting from running into an open excavation upon the street. The court quoted in its opinion the case of Pettengill v. City of Yonkers, 116 N.Y. 558,564, 22 N.E. 1096, 15 Am. St. Rep. 442, as follows [page 747]:
"`A person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the daytime or nighttime, relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel has performed that duty, and that he is exposed to no danger from its neglect'."
In a Denver case, City of Denver v. Stein, 25 Colo. 125,53 P. 283, where plaintiff stumbled over an iron rod standing in a space about midway between the flagging and the curbstone, and six inches within the Larimer Street sidewalk (placed there originally as a sounding rod for a police telephone *Page 82 box and left standing when the patrol box was removed), the court in deciding the case said [page 284]:
"While there is a conflict between the adjudicated cases upon the question as to whether a city is bound to keep in repair its suburban streets and sidewalks, to their entire width, yet upon principle it is clear, and by the weight of authority it seems to be settled, that with reference to sidewalks in populous portions of the city, and such as are constantly used by the public, its duty is to use reasonable care in keeping them in repair, and free from defects, throughout their entirety."
"Langan v. City of Atchison, 35 Kan. 318, 11 P. 38 [57 Am.Rep. 165], is a case where a person walking along a street was injured by the falling of a large bill or show board blown down by a strong wind. It was erected on private property, and, as shown by the evidence, in a negligent manner. The court in which the cause was tried sustained a demurrer interposed on behalf of the city, holding thereby that the city was not liable in damages for the injury sustained. The Supreme Court reversed the ruling of the lower court, and in the opinion state the law as follows: `The decisions in this state are numerous that cities having the powers ordinarily conferred upon them respecting streets and sidewalks within their limits owe to the public the duty of keeping them in safe condition for use in the usual mode by travelers, and are liable in a civil action for injuries resulting from the neglect to perform this duty,' — citing in support of this principle Jansen v. City of Atchison,16 Kan. 358, and City of Salina v. Trosper, 27 Kan. 544."
(Cited from the case of City of Oklahoma City v. Meyers,4 Okla. 686, 46 P. 552, 554.)
Nyman, the man who had charge of the yard, knew of, and at least by oral activity participated in the proceedings with regard to the condition of the fence. Mr. Anderson, the manager of the Anderson Lumber Company, gave consent to the operations and could not have escaped knowledge of the situation.
Maughan and Kent were both city employees, and whether or not the men who actually felled the tree were paid by the city or the relief committee does not appear, nor does it matter. It is probable that an arrangement existed similar *Page 83 to that in the case of Weber County — Ogden City ReliefCommittee v. Industrial Commission of Utah et al., 93 Utah 85,71 P.2d 177. There a relief worker was sent by the relief committee to the city to work, and did work, under the direction of city officers or employees. In the case just referred to the following occurs:
"The mere payment of a relief worker's wages from federal and state funds did not make worker an employee of the state or local relief committee nor negative his being an employee of the city which controlled and directed his work, as respects worker's claim for injuries under Workmen's Compensation Act."
I apprehend, had one of the workers been injured while felling the tree, he would have been considered in the same situation. It was also erroneous for the court to find in the instant case:
"That the opening of said fence and the fastening of the same back was all done under the direction and supervision of the unemployment council and was not done by or under the supervision or direction of either of the defendant, Logan City or defendant Anderson Lumber Company, and one Joseph H. Kent, who supervised the opening and fastening of the fence and the cutting down of said tree, was then and there acting as agent for said unemployment council and not as agent of either defendant."
What was done could not have been done lawfully without the knowledge and consent of both the city and the property owner.
This brings us to the question of the manner of fastening the loosened portion of the fence when it was fastened back by twisting the ends of the loosened wires of the first, third, and fourth strands around the corresponding portions of the stationary fence. That said twisting was done by means of pliers, and that said strands were twisted around once and a half, is testified to by Mr. Kent. Exhibit "A" is a portion of the fence alleged to have been fastened, and identified as the portion which was used for twisting around the *Page 84 stationary fence, as indicated by the oral testimony. The exhibit before the court contradicts the oral evidence as to the manner and means of fastening. The physical condition of the wire (exhibit A) cannot be impeached. Certainly the evidence would indicate that the twisted portion was not fastened by twisting with pliers, as stated, but was hooked sometime during the eighteen-day period in an unstable sort of way, or loosely twisted around the other corresponding wires. Mr. Kent said that he loosened the wire but was told by Mr. Nyman to leave it, about which his testimony is somewhat wobbly. Another witness testified that it was entirely loose and that he threw the loosened wire over the undisturbed part of the fence. This evidence is not contradicted.
No finding of fact made by the trial court will be disturbed in a case tried to the court if there is substantial competent evidence to support it. Wilson v. Salt Lake City, 52 Utah 506,174 P. 847; Bear River Valley Implement Co. v. Jensen,61 Utah 100, 211 P. 186; Hanson v. Greenleaf, 62 Utah 168,218 P. 969; Carlquist v. Quayle, 62 Utah 266, 218 P. 729;Booth v. Nelson, 61 Utah 239, 211 P. 985; Beaver Drug Co. v. Hatch, 61 Utah 597, 217 P. 695. In the particulars herein stated I think the evidence requires findings other than those made by the trial court. I am of the opinion that there was error in the findings warranting a reversal of the judgment.