City of Jonesboro v. Pribble

• Decision Date: 20 April 1914
• Docket Number: 279
• Citation: 166 S.W. 576,112 Ark. 554
• Parties: CITY OF JONESBORO v. PRIBBLE
• Court: Arkansas Supreme Court

166 S.W. 576

112 Ark. 554

CITY OF JONESBORO v. PRIBBLE

No. 279

Supreme Court of Arkansas

April 20, 1914

Appeal from Craighead Circuit Court, Jonesboro District; J. F Gautney, Judge; reversed.

Judgment reversed and cause remanded.

H. M Mayes, for appellant.

1. The evidence does not sustain the verdict. Even from plaintiff's own testimony, the verdict is contrary to the physical facts as developed in the evidence. 158 S.W. 996; 154 S.W. 219. The burden was on him to support the allegations of the complaint by a fair preponderance of the evidence. 157 S.W. 384.

2. The witness Vogt was a civil engineer of experience, and the only person available who knew, or could have known, how to make the calculations for providing necessary drains and openings to prevent the standing of water upon the lands in question. It was competent for him to testify as to whether or not the tile placed under the sidewalk was sufficient to drain out the water within a reasonable time, also as to whether or not he found the opening made from his calculations of sufficient size to carry the water which is required to go through the tile. And the court erred in excluding this testimony. 57 Ark. 512.

Baker & Sloan, for appellee.

1. The evidence in support of the verdict is legally sufficient, and that verdict settles the question of fact.

2. The court properly excluded the testimony of the city engineer touching the matters now complained of by appellant. Since the questions propounded to the city's expert did not embrace all the essential facts, since he made known to the court that he knew nothing of the overflow conditions, prior to the time of the attempted improvements, and was ignorant as to whether appellee's property was overflowed from the Olive Street ditch, he was not competent to give to the jury an opinion. 87 Ark. 243; 77 Ark. 418; 98 Ark. 352; Id. 399; 100 Ark. 518: 103 Ark. 196.

OPINION

SMITH, J.

Appellee was the owner of a lot, fronting on Huntington Avenue in the city of Jonesboro, and alleged in his complaint that the city had so graded that avenue as to retard the flow of surface water off his lot, and that the water was impounded thereon after rainfalls. It was alleged that appellee had applied for an arbitration of his damages, as provided by section 5495 of Kirby's Digest, and that he had selected an arbiter and the city had selected one, and these two, a third, and these arbiters had recommended that changes be made in the street grade, or that culverts be supplied in lieu thereof, but that no action had been taken upon this recommendation. Damages were prayed in the sum of $ 500. The answer contained a denial of all the material allegations of the complaint.

There was a verdict and judgment in favor of appellee for $ 300, and the city has appealed. The evidence, while conflicting, is legally sufficient to support the verdict, upon the theory that the grading has permanently obstructed the flow of water from appellee's lot. No objection was made to any instruction, and appellant complains chiefly of the insufficiency of the evidence, and of the action of the court in excluding certain testimony of the city engineer, who had directed the work of grading and filling Huntington Avenue.

We have said that the evidence was legally sufficient to sustain the verdict, although it is very earnestly insisted that such is not the case. The city engineer testified that certain drainage had been established, as a part of the improvement and while he admitted that water had been impounded, during the progress of the improvement, he testified that this had not been the case since its completion, and that he had...