O'Dell v. Goodsell

Landis, District Judge,

dissenting.

Regretfully, I find myself in disagreement with the majority opinion.

Time was when absolute liability was the rule. Absolute liability for one’s acts is today the exception; there must be some tinge of fault, whether willful or negligent. We must inject into ancient formalism and conjectures a common sense more appropriate to our time.

The determination of the dismissal should under all circumstances be in harmony with what a rational and fair person would do. In weighing conflicting interests, the interest that is better founded-and more worthy of protection should prevail. It is not what I believe is right. It is what I may reasonably believe some other man of normal intellect and conscience might reasonably look upon as right.

Appellant pleads seven. acts of negligence. The evidence in support thereof completely fails to show any *267causal relationship between these and any acts or omissions of the sheriff. On the other hand, it shows that the sheriff at all times acted as an- ordinary and' reasonably prudent officer should act.

The record amply sustains what appellant states in her brief: “We believe that the fair inferences from the facts are that the deceased pulled out the four small mattresses from the bunks in the jail, put.them in the southeast comer of the bull pen, laid down on them with a lighted cigarette that set fire to the edge of the mattresses and the mattresses smoldered there until all of the oxygen in the room was gone and both of the men suffocated to death therefrom. The deceased man’s body evidently was burned after his death because there was no evidence of a struggle whatsoever.”

The deceased came to his death by his own carelessness. For this tragic death the sheriff is in no way legally or' morally responsible. The experienced trial judge properly entered an order of dismissal, which should be affirmed by this court.