The orders reversing the Sutton, Snow, and Waters Cases do not meet with my approval. The first two are reversed, because of the omission of the trial court, in each case, to submit to the jury the questions of the knowledge by the elevator company and the lack of knowledge by the hotel company of the negligence and danger complained of. It is stated, in effect, that by our decision in Gertrude Berg v. Otis Elevator Co., 64 Utah, 518,231 P. 832, we are committed to the rule that liability in these cases is dependent upon affirmative proof that the elevator company had knowledge and the hotel company had no knowledge of the defect and danger complained of, and that unless both questions are submitted to the jury, a verdict for the plaintiff cannot stand.
I know of no text or previously adjudged case which announces such a rule, and in my opinion the Gertrude Berg Case is no authority for it. It is true in that case (as in the cases at bar) the fact of knowledge by the one and the lack of knowledge by the other were proved in the case, and this court very properly stated in the decision that in such case the decided weight of authority supports the proposition that the former is liable. But the opinion does not purport to state the minimum conditions of liability in such cases; it merely disposes of the case before the court upon the facts in that case. The decision is authority for the rule of liability under the facts there stated, but it is no obstacle in the way *Page 168 of liability being upheld in other cases, upon a less showing of facts. Upon the proposition that the questions of knowledge referred to must be submitted to the jury, the Gertrude Berg Case actually decides the very contrary. The instructions in that case, which this court said "constituted a clear and concise statement of the law applicable to the facts," and in which "no reversible error was committed," contained no charge whatever upon the subjects of knowledge or lack of it by the respective defendants.
The question under consideration involves, (1) the knowledge on the part of the elevator company; and, (2) the lack of knowledge on the part of the hotel company.
On the first proposition, if the Gertrude Berg Case is any authority at all, it supports the judgments in the cases at bar. There is no difference in the facts or the records upon this subject. In the Gertrude Berg Case the question was discussed and decided. On page 527 (231 P. 835), after quoting the allegation of the plaintiff's complaint to the effect that the defendant well knew of the negligence and danger, etc., the court said:
"The above allegations were repeated in substance by the court in its statement to the jury of the issues submitted, but, though requested, no other instruction was given relating to theknowledge of appellant of the imminence of the danger. It is now contended that it was error not to give further instructions on this subject. No doubt the court would not have refused the requests, had they not contained erroneous legal propositions." (Italics supplied.)
The court then points out the erroneous features of the requests and continues:
"The sensible and logical position seems to us to be that, if the contractor does defective work which renders the instrumentality dangerous, he becomes liable in damages to one injured if he knew, or under the particular circumstances should have known, that the instrumentality was delivered to the contractee in a condition of imminent danger, and in a condition in which reasonable inspection would not have revealed the defect and danger. As we view the law, the requested instructions contained erroneous propositions of law. In this jurisdiction it is well established that error cannot be predicated upon the refusal *Page 169 to give a requested instruction, if the request contains any erroneous statement of either law or fact. With the statement of the issues by the court and other instructions given, which as a whole constituted a clear and concise statement of the law applicable to the facts, we are convinced that no reversible error was committed by the court in the instructions given. * * *"
In that case the liability of defendant is upheld and the judgment affirmed, notwithstanding the failure to instruct upon the element of defendant's knowledge, the requests therefor having been erroneous. Here, where there was no request at all, the omission or failure to charge upon the element of defendant's knowledge is held by the majority to be fatal error. There is no support in the Gertrude Berg Case for such conclusion. The doctrine, as usually stated, is that the independent contractor or manufacturer, as the case may be, who delivers to another an article or instrumentality which has been rendered imminently dangerous by his negligence, is liable to third persons injured thereby, if the original maker had knowledge that the nature of the thing and its intended use was such that it would be imminently dangerous to third persons if defectively made. The requisite knowledge upon the part of the maker "hath this extent, no more."
"If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. * * * There must be knowledge of a danger, not merely possible, but probable. * * * Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that, in the usual course of events, the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. We are now dealing with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability *Page 170 will follow. * * * Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective." Cardozo, J., in MacPherson v. Buick Motor CarCo., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440.
In the cases at bar, the elevator company admitted in its answers that it knew the nature and intended use of the elevator which it repaired. Beyond all question the nature of a passenger elevator in a public hotel gives warning of probable danger if its construction is defective. There was no question of fact respecting the knowledge of the elevator company to be submitted to the jury. From the pleadings that knowledge followed as a matter of law. The elevator company, knowing the nature of the elevator it installed and its intended use, was bound to know the danger necessarily created by its own negligent acts.
Now, with respect to the lack of knowledge on the part of the hotel company:
The majority opinion holds, in effect, that such lack of knowledge must appear affirmatively before the elevator company is liable, and that this is so vital and fundamental a condition that to omit it in the instructions, as a condition of recovery, must invalidate the verdict, although no request is made to instruct the jury upon the subject. And the opinion in the Gertrude Berg Case is relied upon to support the conclusion. In the Gertrude Berg Case the question was not raised or discussed at all, and in the decision in that case, upon a record in this respect almost identical with the cases at bar, the liability of the elevator company was sustained, and the judgment against it affirmed, when no reference whatever was made in the instructions concerning the knowledge of the hotel company. In the cases at bar, as in the Gertrude Berg Case, there was affirmative uncontradicted evidence that the hotel company had no actual knowledge of the defect and danger complained of, and there was very persuasive evidence (disputed in argument) that the cone attachment itself was of such a nature and in such a position that reasonable inspection would not have discovered the defect. *Page 171 But here, for the first time, the elevator company asserts that an averment contained in each of the complaints of the respective complainants, amounts to an unqualified allegation that the hotel company had full knowledge of the defect and danger, and that the plaintiffs are bound by such pleadings. The allegation is paragraph VI of the respective complaints and is quoted in the prevailing opinion. It is to the effect "that the said defendants" then and there well knew of the negligent manner of work, the danger thereby created, etc.
It is not clear to me that the phrase quoted includes the hotel company. There were three defendants sued in the action, the hotel company, the elevator company, and one Clark. In paragraph V of the complaint it is alleged, in substance, that the elevator company undertook to maintain and repair the elevators, and that on a certain date mentioned it installed the hoisting cables on the elevator in question; that the work of installing the cables was performed by defendant Clark, who was then and there an employee of the elevator company. Then follows paragraph VI, alleging, in effect, that it was the duty "of said defendants," in attaching the said cables, to properly bend the wires, etc., and that, unless said cables were properly attached, there was great danger of the cables parting, etc., all of which "the said defendants" well knew; that, notwithstanding the duty of "the said defendants" in the premises, they negligently and carelessly did the work, so that there was great and imminent danger, etc., and that "the said defendants" then and there well knew of said defect and danger, etc.
In view of the allegation of paragraph V that the defendants, the elevator company, and Clark, its employee, undertook to and did do the work of installing the cable, I am not certain that the term "the said defendants," as repeatedly used in the next succeeding paragraph, must be held to include all three defendants. I think it equally permissible to say, especially after verdict, that the words quoted referred only to the two defendants who actually did the work, and *Page 172 did not include the hotel company. That this was the understanding of the parties at the trials cannot be questioned. The plaintiff, in each case, offered affirmative proof that the hotel company had no actual knowledge of the defect and danger, which evidence was admitted without objection and was wholly uncontradicted. And no allusion to the question of the pleading which is now raised was made at any of the trials. Under these circumstances, I think the doubtful and strained interpretation of the pleadings contended for by the elevator company should be rejected.
In my view, the pleading itself, under the circumstances, does not amount to an allegation that the hotel company had knowledge. But, assuming that it does, it is immaterial, because such knowledge, as hereinafter shown, is no bar to recovery by the plaintiffs.
While considerable importance is attached to the pleading in the majority opinion, it seems to be the conclusion there reached that, independent of the pleading, the cases must be reversed upon the grounds that the lack of knowledge by the hotel company was not submitted to the jury, which is held to be fatal error. Of course, if lack of knowledge by the hotel company is an essential prerequisite to recovery, the complaints all fail to state a cause of action, because that element is not alleged. This inquiry involves two separate legal questions: (1) Is such lack of knowledge a condition precedent to recovery? and, (2) Is it error to omit submitting the matter to the jury, when the fact is proved by uncontradicted evidence, and no request is made for an instruction concerning it? My opinion that both questions should be answered in the negative brings me in disagreement with my associates.
The doctrine of liability in this branch of the law has been frequently and ably expounded in the courts. Notable and comprehensive discussions of the subject are made by Pitney, C., in Tomlinson v. Armour Co., 75 N.J.L. 748, 70 A. 314, 19 L.R.A. (N.S.) 923, by Jaggard, J., in O'Brien v. American BridgeCo., 110 Minn. 364, 125 N.W. 1012, *Page 173 32 L.R.A. (N.S.) 980, 136 Am. St. Rep. 503, and by Cardozo, J., inMacPherson v. Buick Motor Co., supra. In neither of these cases, nor in the great number of cases cited by them, is there any warrant for the rule that liability is conditioned upon proof of the negative fact that the intermediary had no knowledge of the defect or danger. It is enough that the work is finished, the test final, or the thing of such a nature that reasonable inspection would not disclose the danger.
But in cases of actual knowledge of the defect and danger on the part of the intermediary, through which the dangerous thing passes from the negligent maker to the person injured, the decided weight of judicial opinion holds the original author of the danger liable notwithstanding. Thomas v. Winchester, 6 N.Y. 397, 57 Am. Dec. 455; Ives v. Welden, 114 Iowa 476,87 N.W. 408, 54 L.R.A. 854, 89 Am. St. Rep. 397; Clement v. Crosby,148 Mich. 293, 111 N.W. 745, 10 L.R.A. (N.S.) 588, 12 Ann. Cas. 265;Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 29 S. Ct. 270,53 L. Ed. 453; Goar v. Village of Stephen (Minn.) 196 N.W. 171;Junkermann v. Realty Co., 213 N.Y. 404, 108 N.E. 190, L.R.A. 1915F, 700; Bryson v. Hines (C.C.A.) 268 F. 290, 11 A.L.R. 1438; Hartley v. Rochdale, 2 K.B. 594, 3 B.R.C. 993.
Even assuming that the doctrine of the cases just cited is wrong, and accepting the strict rule that knowledge of the intermediary breaks the casual connection between the originla negligence and the injury, the existence of such knowledge would only be matter of defense. In the cases at bar there was no evidence whatever that the hotel company had actual knowledge of the defective condition of the cables or of the danger created thereby. The only evidence on the subject was to the contrary. The action was defended by appellant upon the theory that it had committed no negligence, that the cables had been attached to the cones in a careful and proper manner, and that the accident did not result from any of its acts or omissions.
The rule just stated rests upon the idea that if the intermediary, to whom the dangerous thing is delivered by the *Page 174 author, has knowledge of the danger, it then becomes his duty to make it safe or to prevent it from injuring others, and that if he fails it is then his negligence and not the negligence of the original author, which is the proximate cause of the injury. In this view the first wrong-doer is not relieved because he was not negligent, but because his negligence was not the proximate cause of the injury, and this for the reason that another efficient cause intervened and insulated him from liability. The conclusion of the matter is that an intervening proximate cause is shown by proof that the intermediary had knowledge of the danger, which breaks the casual connection between the original negligence and the injury. Admitting all this, the application of the doctrine to these cases is erroneous. The effect of the majority opinion is that it is incumbent upon the plaintiffs to affirmatively disprove that this particular intervening cause intervened. Innumerable proximate causes of injury might possibly intervene in most any case. Is it a condition of recovery that the plaintiff negative all possible intervening causes? The reasonable rule is, and must be, that the intervening cause asserted here, if available at all, is available only by way of defense, and need not be negatived.
When, as here, the evidence was sufficient to establish the liability of appellant, unless knowledge by the hotel company intervened to relieve it, it is my opinion that such knowledge is not presumed, and need not be disproved in order to make out a case. To require an injured plaintiff, as a condition of his recovery against the original wrongdoer, in cases of this kind, to affirmatively establish lack of knowledge on the part of one or a dozen intermediaries through whom the dangerous thing may have come to him, would in many cases be a bar to recovery, even though such knowledge in fact never existed. When the cases were submitted to the respective juries, no request was made by the elevator company for any instruction relating to knowledge of any defect or danger in the elevator in question on the part of *Page 175 the hotel company; and, as before stated, there was affirmative evidence that the hotel company had no such knowledge, with no evidence to the contrary. Under a rule of very general application, supported by cases in our own court and elsewhere, too numerous to mention, I think the failure to so instruct, in such case, is not error.
With respect to the Waters Case, it is my opinion that the interpretation placed by the majority upon the statute relating to challenges to the jury is erroneous. The cases cited and relied upon in support of the majority opinion do not deal with statutory provisions like those of this state. There is a marked distinction between the statutes of the different states, which is recognized by the authorities, and which accounts for the apparent conflict of judicial opinion. The provision of the Utah statute (section 6792), "Either party may challenge the jurors, but where there are several parties on either side, they must join in a challenge before it can be made," is not found in any of the statutes considered by the causes relied upon in the majority opinion. Under statutes like ours the authorities seem uniform in holding against separate challenges. In 35 C.J. 409, the distinction is pointed out as follows:
"The statutes sometimes expressly provide that, if there are several parties on either side of a controversy, they must all join in their challenges, and in such case the rule allowing parties appearing separately to interpose separate challenges cannot obtain."
In Colfax Nat. Bank v. Davis Imp. Co., 50 Wash. 92,96 P. 823, 16 Ann. Cas. 264, it was held, under a statute "providing that either party may challenge the jurors, but, when there are several parties on either side, they shall join in the challenge before it can be made," parties appearing separately cannot interpose separate challenges. In this case the court points out the distinction between the statutes of Wisconsin and Michigan and the statute of Washington, and adds that the great weight of authority (citing numerous cases) is against the decisions of the former states, even under similar statutes. *Page 176
In Crandall v. Puget Sound, etc., Co., 77 Wash. 37,137 P. 319, the court again held that, under the Washington statute, defendants in tort, who not only resist the right of plaintiff to recover, but who seek to shift any recovery from one to the other, are not entitled to separate peremptory challenges. To the same effect is Newell v. Loeb, 77 Wash. 182, 137 P. 811.
In San Louis Obispo County v. Simas, 1 Cal. App. 175,81 P. 972, the eleventh headnote reads:
"Under Code Civ. Proc. § 601, providing that either party may challenge the jurors, but where there are several parties on either side they must join in a challenge before it can be made, where several parcels of real estate lying in the same county were sought to be condemned for highway purposes in a single proceeding the owners were required to join in their peremptory challenges."
See, also, Hodges v. So. Pac. Co., 3 Cal. App. 307,86 P. 620.
In Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74,96 S.W. 336, there were several defendants, whether antagonistic or not does not appear. The court said:
"In the impaneling of the jury in the case the trial court refused to allow the Waters-Pierce Oil Company to peremptorily challenge three jurors. The appellant insists that the court erred. But we do not think so. The statutes * * * expressly provide in civil cases that `each party shall have three peremptory challenges,' and * * * that, `where there are several persons on the same side, the challenge of one shall be the challenge of all.' All of the defendants are not entitled in the aggregate to more than three peremptory challenges. The statutes do not provide that they shall, in any case, be entitled to more."
In Cumberland T. T. Co. v. Ware's Adm'x, 115 Ky. 581,74 S.W. 289, it was held, under a statute providing that each party litigant in civil actions shall have the right to three peremptory challenges, and declaring that in all civil cases the clerk shall draw from the box the names of eighteen of the jury and deliver a list to each party, from which the plaintiff and defendant may each strike three, the first twelve names not erased to be the jury, one of three defendants, *Page 177 though he files an affidavit averring that his defense is in conflict with his codefendants, is not entitled to three peremptory challenges alone, but the three together are only entitled to three challenges.
Upon the pleadings and the face of the record, at the time the jury was impaneled, there can be no question but that the two defendants "were on the same side" of the controversy, within the meaning of the statute. Practical reasons suggest that the court ought not look beyond the pleadings, or engage in any collateral inquiry to discover hostility or conflict of interest between defendants, for the purpose of determining the right to challenge jurors. The time consumed and the effort expended in the trial courts in the examination and impaneling of juries is an admitted evil in legal procedure, and is the subject of a very general and just complaint, in view of which the modern tendency is towards diminishing rather than enlarging the participation of litigants in the selection of the jury. To increase the number of challenges, and permit extraneous and collateral inquiries to be introduced, adds to the confusion and intensifies the evil. The procedure in this respect should be simple and expeditious. Besides, the multiplication of challenges on the side of the defense destroys the balance of equality intended to be preserved as between the two opposing sides of the controversy actually to be tried.
The right to challenge jurors peremptorily depends entirely upon statute. The Legislature has undouted power to deny the right altogether, or to allow it under such restrictions as it may prescribe. Under our statute the several parties on either side required to join in a challenge are not merely those friendly to each other, but all of them. I think the trial court committed no error in denying the challenge made by appellant.
Upon the questions to which I have not referred I concur in the majority opinion. I concur in the judgment affirming the Berg Case. I think the Sutton, Snow, and Waters Cases should also be affirmed. *Page 178