Canal Construction Company v. Clem

• Decision Date: 31 March 1924
• Docket Number: 272
• Citation: 260 S.W. 442,163 Ark. 416
• Parties: CANAL CONSTRUCTION COMPANY v. CLEM
• Court: Arkansas Supreme Court

260 S.W. 442

163 Ark. 416

CANAL CONSTRUCTION COMPANY v. CLEM

No. 272

Supreme Court of Arkansas

March 31, 1924

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

STATEMENT OF FACTS.

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, Arkansas. 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 watercourse 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 first 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.

Judgment reversed, and cause of action dismissed.

A. B. Shafer, J. Brinkerhoff and J. J. Mardis, for appellant.

Appellant owed no duty to the county, district or appellee with respect to the replacement of the bridge; it was outside its contract. Duties of imperfect obligation imposed only by generosity, kindness, or charity are excluded. 100 U.S. 95; 115 N.Y. 55. For liability under such cases citation is made to the following cases: 109 F. 294; 98 Ark. 399; 123 S.W. 264; 165 Ky. 752; 127 S.W. 143; 6 So. 914; 30 La.Ann. 345; 68 N.Y.S. 407; 94 Ark. 380; 122 N.E. 1; 145 Ind. 255; 140 Pa.St. 70; 89 S.W. 330. There was an efficient intervening cause, which would relieve appellant from any liability, in that the middle bent of the bridge washed out shortly after reconstruction. See 100 S.W. 759; 87 Ark. 576; 23 Wend. (N. Y.) 455. It was the duty of the public or the county to repair the bridge. 43 Kan. 509; 28 Lum. 344 (N. Y.); 80 Ind. 478; 11 Barb. 457 (N. Y.); 20 N.Y.S. 389. The uncontradicted evidence is to the effect that appellant did not repair the bridge in whole, or even attempt to do so, but what it did was gratuitous. There is no evidence to sustain the verdict. 53 Ark. 96; 51 S.W. 319; 55 S.W. 940; 97 S.W. 56; 115 S.W. 942; 234 S.W. 50. When the effect of such testimony is to defeat the action, the court should so instruct, and direct a verdict for defendant. 250 S.W. 902. See also 128 Miss. 593; 251 S.W. 34. One suing under Lord Campbell's Act is barred of recovery by his contributory negligence. 139 S.W. 301; 23 A. L. R. 643.

C. T. Carpenter, for appellee.

It is the duty of any one cutting a public highway to restore it to its former condition. Ann. Cas. 1914A, 548; 43 L. R. A. 699; 13 R. C. L. 262; 9 A. S. R. 8651; 30 L. R. A. (N. S.) 1111; 54 Ark. 133; 104 Ark. 63; 118 Ark. 1. While it is true that drainage districts are exempt from liability for damages, this immunity does not extend to independent contractors. 110 Ark. 422; 131 Ark. 286; 118 Ark. 1. Appellant was liable because of the negligent manner in which it reconstructed the bridge. 54 Ark. 131; 69 Ark. 402; 104 Ark. 63. A master is liable, even though he did not know of or authorize acts of his servants which were done within the scope of employment. 93 Ark. 398; 40 Ark. 298; 111 Ark. 213. Whether an act done is in the line of a servant's duty is a question for the jury. 48 Ark. 181. A traveler injured as a result of a defect in a highway is not debarred from recovering therefor by the fact that he knew the bridge to be unsafe, unless the danger was obvious and imminent. 4 R. C. L. 213, par. 19; 55 L. R. A. 162; 27 L. R. A. (N. S.) 832; 104 Mass. 73. See also 52 Ark. 368; 102 Ark. 258; 48 L. R. A. 455; 2 L. R. A. 450.

OPINION

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

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, though the injury resulted from the contractor's failure to properly carry out his contract.

In Thompson on Negligence, § 686, the rule is stated as follows: "Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all., only to the proprietor for a breach of his contract."

As sustaining the general rule, we cite the following cases Young v. Smith & Kelly Co. 124 Ga. 475, 4 Ann. Cas. 226; McCrorey v. Thomas, 109 Va. 373, 17 Ann. Cas. 373, 63 S.E. 1011; Albany v. Cunliff, 2 N.Y. 165, 2 Comstock 165; Curtin v. Somerset (Pa.), 140 Pa. 70, 12...