Anderson-Friberg Co., Inc. v. S. G. Phillips Corp.
| Decision Date | 05 November 1979 |
| Docket Number | No. 143-78,ANDERSON-FRIBERG,143-78 |
| Citation | 137 Vt. 565,409 A.2d 560 |
| Parties | CO., INC. v. S. G. PHILLIPS CORP. |
| Court | Vermont Supreme Court |
Abare, Donaghy & Nicholls, P.C., Barre, for plaintiff.
Dinse, Allen & Erdmann, Burlington, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
In this civil action, the plaintiff seeks damages for injury to its granite manufacturing plant allegedly caused by the defendant's negligence. The case was tried without a jury in the superior court on March 17 and 18, 1977. On December 20, 1977, the court filed findings of fact and conclusions of law that were dated November 26th. The court found in favor of the defendant on the ground that it did not cause plaintiff's injury, and judgment for the defendant was entered on December 28th. Plaintiff's motion for a new trial was denied. Plaintiff appeals, assigning as error: (1) that the court's findings were not supported by the weight of the evidence, and (2) that the delay between the hearing, and the filing of the court's findings and conclusions, constituted prejudicial error. We affirm.
In June, 1973, defendant was clearing and grubbing a right of way to the southwest and along the western side of plaintiff's property, pursuant to a highway building contract with the State of Vermont. Also west of plaintiff's property there was an old stone box culvert. On June 30, 1973, 3.33 inches of rain fell. The old culvert was washed out, and large quantities of silt, mud, and water were deposited on plaintiff's property, damaging plaintiff's plant. The trial court found that the collapse of the culvert caused the damage to plaintiff, independent of any negligence on the part of the defendant.
"Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, they are clearly erroneous." Wilson v. Hilske, 132 Vt. 506, 507, 321 A.2d 16, 17 (1974). In this case there was testimony and other evidence that the box culvert washed out, causing the release of 800-900 cubic yards of silt. There was expert testimony that the culvert would have been washed out even had the trees not been cut, and the evidence showed that the stumps with their soil preserving root systems had not been grubbed from the area surrounding the culvert. Furthermore, there was testimony that most of the debris deposited on plaintiff's land...
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