Fremont Farmers Union Co-op. Ass'n v. City of Fremont
| Decision Date | 14 January 1966 |
| Docket Number | No. 36031,36031 |
| Citation | 179 Neb. 576,139 N.W.2d 369 |
| Parties | FREMONT FARMERS UNION COOPERATIVE ASSOCIATION, a Nebraska Corporation, Appellee, v. The CITY OF PREMONT, Nebraska, a Municipal Corporation, Appellant, Impleaded with The Department of Utilities of The City of Fremont, Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Where an expert gives an opinion upon facts established by the record in a matter recognized as a proper subject for expert opinion, unless impeached to such an extent as to have no probative value, it is ordinarily sufficient to sustain a verdict.
2. Under ordinary circumstances, expert opinion evidence is to be considered and weighed by the triers of the facts like any other testimony.
3. Where expert opinion evidence is in conflict, it becomes a question for the jury.
Sidner, Gunderson, Svoboda & Schilke, Max A. Powell, Fremont, for appellant.
Richards, Yost & Schafersman, Fremont, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
This is a negligence action. Trial was had on plaintiff's allegations of negligence and defendants' denial thereof, and their allegations of contributory negligence. The jury returned a verdict for the plaintiff and defendant city has perfected an appeal to this court.
The plaintiff, Fremont Farmers Union Cooperative Association, contracted for the construction of a feed mill during the forepart of 1963. On February 27, 1963, while the basement was being excavated, the contractor's caterpillar struck and ruptured a 6-inch water main owned and maintained by the defendants, City of Fremont and Department of Utilities, who will hereinafter be referred to as defendant. The rupture occurred between 4 and 4:30 p. m. The defendant was contacted immediately and had a repair crew on the job shortly thereafter. It was necessary to shut off the water in the mains in some of the adjoining streets in the area. The water was then pumped out of the excavation by the fire department. Defendant repaired the break by removing a portion of the pipe and inserted a length of pipe and what is known as a solid sleeve connection at one end and a split sleeve connection at the other end. Defendant completed the repair between 10 and 10:30 p. m. The night was very cold and it was snowing. Representatives of the contractor, at the direction of the defendant, covered the exposed pipe and repair with corncobs to protect it from the weather. When the foundation was put in the cobs were removed and the area around the pipe was filled with packed sand, which the evidence indicated to be the usual practice. Construction was completed and the feed mill started operation June 1, 1963. On the morning of September 14, 1963, the plaintiff discovered its basement flooded. The amount of the damage sustained is not in dispute in this lawsuit. The defendant was called and the area of the previous repair was excavated. It was then determined mined that the trouble was in the previous repair and that the water was gushing out of the split sleeve. This split sleeve was located outside but within 30 inches of the plaintiff's basement foundation.
When the split sleeve was examined, it was discovered that of the four nuts and bolts on the north side of the sleeve three nuts were missing and the fourth bolt was broken. The defendant again repaired the water main but on this occasion used a solid rather than a split sleeve. Defendant's explanation for the change is that no split sleeve was immediately available.
Plaintiff's allegations of negligence may be stated briefly as follows: (a) The split sleeve was an inadequate type of repair; (b) it was not adequately bolted; and (c) defendant failed to inspect and test the repairs after they were made.
The defendant denied all allegations of negligence; and alleged that the repair was made in a customary and accepted manner consonant with other water services and maintenance practices; that said repair was done in a workmanlike manner; and that it was inspected and tested after installation and found to be serviceable. Defendant further alleged that the plaintiff was contributorily negligent in constructing a feed mill in the area of the water main without reasonable regard to the possible impact damage to the water main known by the plaintiff to be in the immediate vicinity.
Defendant assigns 25 errors, many of which are repetitious and for convenience herein will be grouped. The first 13 assignments are related to its motion for a directed verdict and its motion for judgment notwithstanding the verdict, all of which is premised on the assumption that the verdict is not supported by the evidence. We do not deem it necessary to a decision herein to review in detail the four volumes of evidence or defendant's summarization thereof, which covered 44 pages of its brief. We think it sufficient to state that we have carefully read the record and defendant's review of the record, and we are of the opinion that the evidence was sufficient to require the submission of the case to the jury.
Defendant's chief complaint is its claim that the plaintiff's case is premised entirely on circumstantial evidence which is insufficient to show causation with reasonable certainty. Defendant ignores the fact that there is some direct testimony, as well as the testimony of plaintiff's expert, which testimony the jury must have accepted in preference to that of defendant's general manager and defendant's expert.
The focal point in this case is the installation of the split sleeve. The undisputed testimony is that the bolts on the split sleeve were installed so that the nuts were underneath the installation. There was evidence from which the jury could find this to be an improper installation. Defendant's general manager, when questioned as to the proper installation of a split sleeve, testified as follows: 'Q--* * * On Exhibits '1' and '2' the nut is on top of the flange, is that right? Answer, * * * '...
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