City of Denver v. Rhodes

• Decision Date: 25 March 1887
• Citation: 9 Colo. 554,13 P. 729
• Parties: CITY OF DENVER v. RHODES.
• Court: Colorado Supreme Court

13 P. 729

9 Colo. 554

CITY OF DENVER v. RHODES.

Supreme Court of Colorado

March 25, 1887

Appeal from superior court, city of Denver.

This was an action brought by Rhodes against the city of Denver to recover for damages alleged to have been done to his stock in trade by backwater from obstructions in Fifteenth street during a shower of rain. The plaintiff was a baker by occupation, and at the time the cause of action arose was the lessee of the basement rooms, and the areas adjoining, of a brick building erected and owned by one William J. Barker situated on the corner of Fifteenth and Stout streets. Long previous to the time mentioned, these streets had been graded, and furnished with gutters for conducting surface water; and all water falling or accumulating in Fifteenth street, and in Stout street near its crossing with the latter, was conducted down Fifteenth street to the Platte river. These streets cross each other at a right angle. The course of Fifteenth street is north-west and south-east. Consequently the left side, as one goes up street, or south-east, is called the easterly side, and the opposite the westerly side. The Barker building is on the westerly side and on the south side of Stout street. The obstruction was opposite the centers of the blocks immediately below, or northward of this building. It was caused by an excavation made across the street for the purpose of laying therein a pipesewer; the earth excavated being thrown out on both sides of the cut, and the sides thereof being shored up with boards. The trench for the sewer-pipe had been excavated from the alley on the easterly side of the street entirely across it, and several feet into the opposite alley. The testimony is conflicting as to the precise condition of the work when the rain occurred with did the damage. The depth of the excavation was from 10 to 15 feet. Theembankment of earth thrown out of this trench appears, from the testimony, to have been from two to three feet high on both sides thereof when the excavation was made. The open spaces or areas adjoining the building occupied by the plaintiff were made by excavating away the earth on both fronts, erecting retaining walls, and covering the areas so made by the sidewalks. The basement apartments under said building were connected with these areas by means of doors in the basement or outer walls. Light to the areas was furnished from the outside, and also a passage-way thereto by means of openings in the sidewalks all being made close to the walls of the buildings, and all protected by iron railings. These outside improvements were made under a license or permit granted by the mayor of the city to said William J. Barker at the time he was erecting the building. It was in these basement rooms that the plaintiff carried on his bakery business. The answer alleges, and testimony was introduced on part of the city to prove, that the areas were improperly and insecurely constructed, and consequently contributed to the injury done to plaintiff's property.

The rain-fall occurred about 12:30 P. M. on July 30, 1881, and the obstruction in the street caused the water to flow back past the Barker building to California street, the next street beyond. The water flowed into and filled up the basement and areas occupied by the plaintiff, causing the retaining walls of the areas to give way, and the sidewalk to fall in, and causing great damage to the plaintiff's property.

The cause was first tried in the county court, resulting in a verdict and judgment for the plaintiff of $1,722.29, and afterwards in the superior court of the city of Denver, resulting in a verdict for the plaintiff of $1,722.19.

At the close of the plaintiff's direct proof in the last trial, counsel for the city moved for a judgment of nonsuit, which was denied, and it is earnestly contended that this ruling was erroneous. The motion was as follows: 'Defendant's counsel now move the court for a judgment herein as of nonsuit, for the following reasons: That in a case of this kind, assuming the facts to be as the plaintiff shows them, for the purpose of the motion, and they are simply these: that the city, through its contractor, was legally and properly constructing a sewer; that an unusual flood of water occurred, that could not have been expected; nobody was expected to provide for any such flow of water,--conceding that the sewer caused in part the damages, or even in whole the damages, yet there is no legal liability against the city, it being a municipality. There is a difference in principle in the case of a municipality and in the case of a private corporation or individual, because one is the representative of the public, and in the construction of the sewer was doing a public work for the public benefit, and the municipality would not be liable. Again, where the damages are caused by an unusual flood of rain, there can be no liability against any one under any circumstances, because it was not negligent to fail to prepare for such a thing; also that the evidence shows, if there was negligence, it was that of the contractor, and not that of the city. Yet there is no wrong shown by the evidence on the part of the contractor or the defendant here, unless it be inferred from the evidence which tends to show that Williams refused to break down some boards which might have prevented the injury at the time of the rain-fall.'

F. Telford, City Atty., and Stallcup & Gilmore, for appellant.

Rockwell & Rowell, for appellee.

BECK, C.J.

The first proposition advanced in behalf of the city is that 'from the record in this case, it is apparent that the well-settled principles of law have been violated again that a plaintiff might have judgment against a municipal corporation.' Our first inquiry will be, what are these well-settled principles of law which have been so violated? for no judgment thus secured, whether for or against a municipal corporation, can be permitted to stand. One of the prominent grounds of complaint is stated in the appellant's second assignment of error, viz.: 'The said court erred in overruling and denying the motion of this appellant for a nonsuit when this appellee had rested his case on the trial thereof.' We may reasonably expect, therefore, to find in this motion, as filed, a statement, of some of these well-settled principles which, in the opinion of counsel, were violated on the trial of this cause.

Referring to the motion, its propositions may be formulated as follows: (1) Assuming the facts to be as shown by the plaintiff's witnesses, and that the condition of the work caused the damages complained of, the city is not liable, because it was, by its contractor, legally and properly constructing a sewer, when an unusual flood of water occurred. (2) A municipality is the representative of the public; and when engaged in the construction of a sewer is doing a public work for the public benefit, and is therefore not subject to the rule of liability which obtains as to private corporations and individuals. (3) No one is liable for damages caused by an unusual flood of rain, because there is no negligence in failing to provide therefor. (4) If there was negligence or wrong in the prosecution of the work, it was on the part of the contractor, and not of the city. (5) There was no wrong on part of the contractor, unless it be inferred from his refusal to break down some boards at the time of the rain-fall, which might have prevented the injury, and for this the city is not liable.

1. Was the city, by its contractor, legally and properly constructing a sewer when the rain occurred? It must be borne in mind that Fifteenth street, across which the sewer was being constructed, had been previously graded and improved, and likewise that portion of Stout street lying in the immediate vicinity. Both streets had been furnished with drains or gutters for the flow of surface water, and the character of the improvements was such that surface waters flowing into Fifteenth street at and above the plaintiff's corner, and accumulating in its vicinity, were drained and caused to flow away from the plaintiff's place of business, down Fifteenth street, past the point of obstruction and into the Platte river; also that the sewer in course of construction was not a street improvement, but an under-ground pipe-sewer.

( a) A preliminary inquiry arises as to to the manner in which the work was being done, and what precautions were being taken to guard against injury to property in the vicinity. It is asserted by defendant's counsel that the assumed reason assigned by the trial judge for denying the motion for nonsuit, and for submitting the cause to the jury, did not exist, and he appeals to the testimony of plaintiff's witnesses to sustain his assertion. The reason assigned by the court was that 'there was evidence tending to show that, at the time of the extraordinary rain, the entire street was obstructed, so there could be no flow of water down either side.' Was this a misrepresentation of the testimony then before the court?

The first witness called by the plaintiff was C. H. McLaughlin who was at the time president of the city council. Upon the point in question he testified that the embankment of earth on either side of the trench which had been excavated across Fifteenth street was from two to three feet high; that the water in the center of the square above was over his boot-tops, and that he saw no provision made for the flowing of waters through the gutters; that the work should have been finished up by leveling down, so that a portion of the street would have been open at the time. D. J. Cook, chief of police, said it was his impression that the street was dammed up clear across, but was not certain. ...