City of Amarillo v. Reid

• Decision Date: 28 May 1974
• Docket Number: No. 8456,8456
• Court: Texas Court of Appeals
• Parties: CITY OF AMARILLO, Texas, Appellant, v. Bernard REID et al., Appellees.

Page 624

510 S.W.2d 624

CITY OF AMARILLO, Texas, Appellant, v. Bernard REID et al., Appellees.

No. 8456.

Court of Civil Appeals of Texas Amarillo.

May 28, 1974.

Rehearing Denied June 24, 1974.

J. Bruce Aycock, Gibson, Ochsner, Adkins, Harlan & Hankins, Mac W. Hancock, III, Amarillo, for appellant.

Arthur J. Lamb, V. G. Kolius, Amarillo, for appellees.

REYNOLDS, Justice.

Plaintiff homeowners sued to recover monetary damages from, and secured favorable jury findings authorizing recovery against, the City of Amarillo, Texas, for its negligence in paving a city street so as to divert rainwaters into plaintiffs' homes. Affirmed.

Plaintiffs are Bernard Reid, J. R. Stringfellow and Earl J. Peoples, and their respective wives. They own homes on the north side of Kelly Place, an east-west street in Sue Terrace Addition, a development situated immediately east of Irwin Road, a street extending in a north-south direction, and immediately west of Amarillo Creek, which runs in a general southwest-to-northeast direction within the city limits. Sue Terrace Addition was developed in 1963 and 1964 by Marvin K. Chamberlain, who constructed and sold houses situated therein, but there is no evidence that Chamberlain sold to plaintiffs the homes they now own.

In the summer of 1971, the city paved the portion of Irwin Road lying east of Sue Terrace Addition. On May 10, 1972, there was a rainfall in such an amount that the water overflowed Irwin Road and Kelly Place and invaded plaintiffs' homes.

Plaintiffs then filed this suit against the city, alleging that the city, while paving Irwin Road, negligently failed to provide for adequate water drainage, thereby diverting water into and proximately causing damage to plaintiffs' homes. The negligent acts alleged were the covering of the then existing ditches on either side of Irwin Road, the removal of the then existing storm sewer under Kelly Place, and the failure to provide an adequate alternative drainage for water.

After seeking and being granted permission to implead Marvin K. Chamberlain as a third-party defendant, the city interposed the defenses that it breached no duty owed to plaintiffs, that plaintiffs were contributorily negligent and voluntarily exposed themselves to, and assumed, the risks involved, and that any liability was that of Chamberlain's arising through his breach of contract and breach of express ad implied warranties to plaintiffs, or through negligence in connection with his construction of the homes. The city further pleaded that it was thereby entitled to indemnity by or contribution from Chamberlain for any liability imposed on it.

The cause was submitted to a jury. Corresponding to the numbered special issues material to this appeal, the jury found that (1) the city covered the ditches paralleling Irwin Road when it paved the street, which (2) diverted flood waters onto plaintiffs' properties, and which was (3) negligence and (4) a proximate cause of plaintiffs' damages; that (5) the city removed the culvert under Kelly Place at the time of paving, which (6) diverted flood waters onto plaintiffs' properties, and which was (7) negligence and (8) a proximate cause of plaintiffs' damages; and that (9) the city failed to provide an adequate alternative route for drainage of flood waters, which was (10) negligence and (11) a proximate cause of plaintiffs' damages. The jury found against the city on its defensive issues and absolved Chamberlain of all liability. The jury apportioned its determination of the total damages of $8,428.00 428.00 to the respective plaintiffs.

The first twenty-one of the city's forty-four points of error are attacks on the submission of, and the jury's findings responsive to, special issues one through eleven. The submission of these issues over the denial of the city's motion for instructed verdict is contested on the assertion that there is no evidence of probative force to warrant their submission. The jury's findings are challenged by assertions that the evidence is legally and factually insufficient to support the findings made. The evidence contained in the voluminous record is summarized preliminarily to the consideration of these points.

The terrain south and east of Sue Terrace Addition is higher than the terrain of the addition, with the natural flow of water toward Kelly Place and over the lots on which plaintiffs' homes were later built onward to Amarillo Creek. In the 1963--64 development of the addition, the streets were engineered, including the manner of paving Kelly Place, and a storm sewer was installed to meet the city's specifications for water drainage as a prerequisite to the city's acceptance of the annexation of Sue Terrace Addition to the city. To facilitate the water drainage, the city installed a cement culvert under Kelly Palce at its intersection with Irwin Road, and provided ditches on both the east and west sides of Irwin Road which was unpaved in the vicinity. Thereafter and until Irwin Road was paved in 1971, except for one instance in 1965 or 1966, the rainwater, even following a substantial rain, would drain down to Irwin Road where it would be caught in the borrow ditches paralleling the road, and then the water would run down those ditches to Amarillo Creek, the water on the west side of Irwin Road and south of Kelly Place passing through the cement culvert under Kelly Place. In 1965 or 1966, a rain washed mud into and filled the ditches paralleling Irwin Road and before the city removed the mud, another rain caused rainwater to flow across the mud-filled ditches into the house later purchased and now owned by the Stringfellows, two of the plaintiffs.

In 1971, the city paved Irwin Road to make it more passble and in order that the people who live on the road could have better access to their homes. Although a paved street improves the drainage of an area, the city engineer in charge of the project denied that one of the reasons the road was paved was to remedy or alter any drainage problem, yet his design was developed to facilitate water drainage. In the course of the paving project, the cement culvert under Kelly Place was removed and the ditches bordering Riwin Road were eliminated.

At its intersection with Irwin Road, Kelly Place was widened eight feet, sloped toward the south and slightly curved with an arm that would tend to slightly increase the flow of water onto Kelly Place from its northward course down Irwin Street. The crown was raised approximately one-half foot and the six inch high curbs were reinstalled. The design effect was not to channel other water onto Kelly Place, but was to retain the normal water on the street, rather than permitting an overflow, as it flowed westward down Kelly Place into Amarillo Creek.

Irwin Road was paved from a point six hundred feet south of Kelly Place northward a total distance of 1540 feet to Amarillo Creek. The elevation drop from the point of beginning to Kelly Place was altered to twenty-four feet, resulting in an increase in the velocity of rainwater flowing northward on Irwin Road to Kelly Place; and from Kelly Place northward, the elevation drop was ten or eleven feet. Although crowned in the center, Irwin Road was made one-half foot lower on the west side than it is on the east side at the Kelly Place intersection Both Irwin Road and Kelly Place carried significantly more water than they did prior to the paving project.

On May 10, 1972, there was a substantial rain, but no more substantial than were four or five other rains prior to 1971 according to one witness, and not as substantial as other rains recalled by another witness. Some of the plaintiffs testified that the rainwater was channeled on Irwin Road in a northerly direction until it got to the intersection with Kelly Place and then, instead of flowing northward as it did before the paving project, it flowed through the curved intersection onto Kelly Place in a westerly direction, filling Kelly Place and overflowing onto plaintiffs' premises and into their homes.

In considering and weighing all of the evidence in the record, albeit only a condensed version thereof has been recounted above, we have been guided by the principles enunciated in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951), as the city submits we must. When so considered, the city insists that there is no evidence that the city breached any duty owed to plaintiffs by doing what it was specifically empowered to do in undertaking the paving project. We do not agree.

While there can be no recovery for damages from the city for the mere exercise of its undisputed legal right to undertake the paving project, recovery may be had for damages proximately caused by negligence or want of care in the exercise of that legal right. Coequal with that...