Canal Const. Co. v. Clem

• Decision Date: 31 March 1924
• Docket Number: (No. 272.)
• Parties: CANAL CONST. CO. v. CLEM.
• Court: Arkansas Supreme Court

260 S.W. 442

CANAL CONST. CO. v. CLEM.

(No. 272.)

Supreme Court of Arkansas.

March 31, 1924.

Rehearing Denied April 28, 1924.

Appeal from Circuit Court, Poinsett County; W. W. Bandy, Judge.

Action by W. T. Clem against the Canal Construction Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

W. T. Clem sued the Canal Construction Company to recover damages on account of injuries received by himself and wife, while crossing a bridge over a public highway, which injuries were caused by the negligence in the construction of the bridge by the defendant.

It appears from the record that the Canal Construction Company made a contract with a drainage district to construct a drainage canal and laterals in Poinsett county, Ark. The drainage canal was constructed under a special act of the Legislature, which required the drainage district to build a bridge wherever the canal was dug across a public road. The Canal Construction Company had no contract with the district for the construction of bridges, or the replacement of those which it was necessary to tear down in digging the canal. During the course of construction of the canal in the fall of 1920, it became necessary for the Canal Construction Company to tear out Little Bay bridge, which was across the channel of a water course called Little Bay, and which was to be the main channel of the drainage ditch. The bridge was on a public road of the county, and was the only access to market of the people who lived across Little Bay. After the Canal Construction Company tore out the bridge and dug its canal past the bridge site, the county judge made a contract with a sawmill man to rebuild the bridge. The bridge was rebuilt at once in a substantial manner, so that lumber wagons could be carried back and forth across it. In about six weeks thereafter it became necessary for the Canal Construction Company to again pass the bridge with its boats, which were used in digging the canal and its laterals, and it thereby became necessary to tear down the bridge again. According to the evidence for the plaintiff, this was done, and the Canal Construction Company, as soon as its boats passed through, undertook the work of rebuilding the bridge. In putting the bridge back it did not level up the stringers, so that the north side of the bridge was higher than the south side. The flooring on the bridge was laid by the Canal Construction Company, but it was not nailed down. Shortly afterwards the high water washed out the middle bent of the bridge. This made the bridge more dangerous, because it would sway up and down and scare a team. Some months after this the plaintiff with his wife and family started to drive across the bridge in a wagon on their way to market. One of the mules stepped on a plank on the outside of a stringer and this caused the plank to tip up and throw the mule off of the bridge. The falling mule dragged the other mule and the wagon and its occupants into the stream. The wife of W. T. Clem was drowned, and he was injured. He lived in the neighborhood, but had not crossed the bridge since it was rebuilt, and did not know that the planks were loose.

According to the testimony of the defendant, the bridge was torn out by it and replaced, except the flooring, on the 1st day of January 1920. In this connection it may be stated that the accident occurred on the 18th day of June, 1920. The Canal Construction Company was under no duty to replace the bridge, and only did so at the request of the residents of the neighborhood who had to cross the bridge in order to go to their nearest market place. These persons did not have any appliances with which to replace the stringers and heavy timbers of the bridge. The Canal Construction Company had such appliances, and for this reason replaced the stringers and the heavy timbers on the bridge. It had nothing to do with the replacement of the flooring. It left a hammer and some nails there to be used by the residents of the neighborhood in replacing the flooring, but its servants do not know whether or not they were so used.

The jury returned a verdict in favor of the plaintiff, and, from the judgment rendered, the defendant has duly prosecuted an appeal to this court.

A. B. Shafer, of Memphis, Tenn., and J. Brinkerhoff and J. J. Mardis, both of Harrisburg, for appellant.

C. T. Carpenter, of Marked Tree, for appellee.

HART, J. (after stating the facts as above).

The court told the jury that the defendant was under no duty to replace the bridge, but that, having undertaken to do so, it would be liable to the plaintiff if the accident was caused by its negligence in replacing the flooring of the bridge without nailing it down.

All the witnesses testified that the floor of the bridge was relaid without nailing it down. The witnesses for the plaintiff testified that this was done by the defendant, and the witnesses for the defendant testified that they had nothing to do with replacing the flooring on the bridge. They only replaced the heavy timbers and left the flooring to be replaced by those who intended to use the bridge.

The general rule is well established that an independent contractor is not liable for injuries to a third person occurring after the contractor has completed the work and turned it over to the owner and the same has been accepted by him,...