Eaves v. City of Ottumwa

• Decision Date: 05 August 1949
• Docket Number: 47264.
• Citation: 38 N.W.2d 761,240 Iowa 956
• Parties: EAVES et al. v. CITY OF OTTUMWA.
• Court: Iowa Supreme Court

38 N.W.2d 761

240 Iowa 956

EAVES et al. v. CITY OF OTTUMWA.

No. 47264.

Supreme Court of Iowa

August 5, 1949

Appeal from District Court, Wapello County; Elmer K. Daugherty Judge.

Charles Bookin, and Gilmore & Dull, all of Ottumwa for appellant.

Swartz & Swartz, and McNett, Kuhns & McNett, all of Ottumwa, for appellees.

GARFIELD Justice.

Plaintiffs' petition in 28 counts seeks damages resulting from a flood on May 23, 1944, to 28 properties in defendant city. At least most of the damaged properties are residences and contents thereof in an area adjacent to a diversion channel or race used by the city in the operation of its hydroelectric plant. Each count in turn consists of two divisions. The first division charges specific negligence of the city and the second is based on the doctrine of res ipsa loquitur.

Count 23 for damage to the Yeoman property was first tried under an arrangement whereby a verdict for plaintiff Yeoman would control as to the remaining counts except upon the issues of injury and amount of damage to the other properties. There was a verdict and judgment for Yeoman of $980 from which this appeal is taken.

The general course of the Des Moines River through Ottumwa is from northwest to southeast. At Turkey Island the river curves to the south and then makes a U turn to the northeast. On each side of Turkey Island is a dam 330 feet long. The diversion channel or race above mentioned extends southeast for about three fourths of a mile from an opening in the river near the east side of Turkey Island to the end of the U turn. Defendant's hydroelectric plant is at the lower end of the channel where it maintains four Tainter gates or flood gates in the channel which is 200 feet wide. Each gate is 25 feet long, 17 feet high, and can be raised 7 feet, 7 1/2 inches from the bed of the channel.

The flooded area is immediately northeast of the race, between it and the Burlington railroad tracks which parallel the race, and between Blackhawk street on the northwest and Cass street on the southeast. Along each side of the race is a levee. Tracks of the Milwaukee railroad are built on the northeast levee. The bridge across the race just below Blackhawk street belongs to the Milwaukee. The accompanying plat may help visualize the physical layout.

RPT.CC.1949105203.00010

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About 7:30 a. m. on Tuesday, May 23, 1944, water began to overflow the northeast levee of the race about 75 feet northwest of Benton street (the second street below Blackhawk) into the area in question. This overflow from the race continued during the day until the water in this area averaged about three feet deep. Mr. Brown, superintendent of the waterworks, and other employees of defendant were fully aware of what was happening.

About 8:30 a. m. a proprietor of a business establishment in the flooded area asked Mr. Brown about opening the floodgates above referred to. Mr. Brown replied it might endanger the Milwaukee's bridge to do so. There was a similar conversation between a resident of the area and Mr. Brown about 10:45 a. m. The gates remained closed until about 8:30 that evening when they were opened.

I. Defendant contends there is insufficient evidence the damage complained of was caused by the negligence charged in division 1 of the various counts. The only specific charge of negligence submitted to the jury was defendant's failure to open the floodgates, thus blocking the flow of water through the race. We think the evidence, in the light most favorable to plaintiffs, sufficient to warrant submitting to the jury the claim based on this charge of negligence.

Incidentally we may observe this contention of defendant seems somewhat inconsistent with its contention both in the trial court and here that plaintiffs were not entitled to rely on the doctrine of res ipsa loquitur because they had introduced evidence of specific negligence.

The floodgates were opened upon the recommendation of Colonel Peel, an army engineer from Rock Island who had come to Ottumwa at Superintendent Brown's request because of the flood. Opening the gates permitted about 8.4 per cent more water to go through the race in a given time. There is substantial evidence that soon after the gates were opened at 8:30 p. m. the flow of water over the northeast levee diminished, by 11 p. m. or before entirely stopped, and no water thereafter overflowed that levee. The only water in the flooded area was overflow from the race. The jury could properly conclude that raising the gates diminished and soon stopped the overflow into this area and that the delay of 12 hours in opening the gates was the proximate cause of the flooding.

The stage of the river at Ottumwa at 7 a. m. on May 23, about when the overflow from the race started, was 13.3 feet. This reading increased until a peak of 17.7 feet was reached at 7 p. m. on May 24. The only other flood of this area was in 1903 when the river stage at Ottumwa was at least 20.7 feet. But there is substantial evidence that in 1903 the flood water came direct from the river over Blackhawk street and not as here from the race.

Nine times between the 1903 flood and the trial in March, 1946, the river stage exceeded 13.3 feet. On one of these occasions, when the river stage reached 14.24, Superintendent Brown assured residents of this area they would not be flooded because the height of the water in the race could be regulated by manipulating the floodgates and this was done. On another of these occasions, when the river stage was 13.5, witnesses testify water in the race was not within four feet from the top of the northeast levee. It may be inferred this condition was the result of opening the gates.

At 1:15 a. m. on Wednesday, May 24, defendant made an opening 60 feet wide and 15 to 18 feet deep in the southwest levee along the race at the curve about midway between the lower end of the flood area and the end of Tisdale street, immediately north of Cass street. Defendant argues this opening in the southwest levee rather than the raising of the floodgates brought relief to the flooded area.

It is doubtless true this 'blowing' of the southwest levee materially accelerated flowage through the race after the gates were opened, helped prevent more overflow along the northeast levee and minimized further damage. But the jury could find the damage was done by the time the gates were opened. The evidence concerning the blowing of the southwest levee does not conclusively demonstrate that failure to open the gates until the flood had progressed 13 hours was not the proximate cause of the damage.

In support of our holding on this branch of the case see Jefferis v. Chicago & N. W. Ry. Co., 147 Iowa 124, 124 N.W. 367; Vyse v. Chicago, B. & Q. Ry. Co., 126 Iowa 90, 101 N.W. 736; Darling v. Thompson, 108 Mich. 215, 65 N.W. 754; Kearney Canal & Water Supply Co. v. Akeyson, 45 Neb. 635, 63 N.W. 921. Issues of negligence and proximate cause in cases of this kind are usually for the jury. 56 Am.Jur., Waters, section 174, page 641.

II. Defendant's requested instruction 13 states 'that if plaintiffs' propertyin its natural condition before the construction of any dams, race or levees, would have been overflowed by the Des Moines River in May, 1944, then plaintiffs are not entitled to recover.' Defendant complains of the refusal of this and similar requests and the giving of instruction 9.

The substance of instruction 9 is that the city was not required to provide protection against overflow of plaintiff's (Yeoman's) property by dikes or levees and would not be liable for failure to do so or for negligence or defective construction so long as no more water was thrown on the property than would have naturally flowed over it if no dikes or embankments had been constructed; plaintiff claims his damage resulted from defendant's negligence in the operation and not the construction of its plant, gates, etc.; it was defendant's duty to exercise reasonable care to so operate its plant, gates, etc. as to avoid overflow of plaintiff's property; if it failed to exercise such care it would be negligent; if such negligence was the proximate cause of plaintiff's damage and plaintiff was free from contributory negligence then defendant would be liable for the damages sustained by plaintiff without regard to whether the land would or would not have overflowed had it been in its natural state.

Defendant excepted to this instruction, particularly the clause italicized by us, on the ground that if 'plaintiff's property would have been flooded had it been in its natural state' defendant would not be liable. The refusal of defendant's 13th request and similar ones and the giving of instruction 9, in connection with the instructions as a whole, was not error.

The instructions make it plain the only specific charge of negligence submitted to the jury was defendant's failure to open the gates and that both divisions 1 and 2 of the various counts of the petition are bottomed on claimed negligence only in the operation of defendant's plant. The jury was told in effect at least twice that in order to be the proximate cause of plaintiff's damage it must be shown the overflow would not have occurred if defendant had not been negligent in the operation of its plant as claimed by plaintiff.

Further reference to the evidence is called for. The race was first constructed in 1875-76 to a width of 60 to 80 feet. The northeast levee was then in its present location but was made higher about 1884 when the Milwaukee placed its tracks there. In 1917-18 the city replaced its old water power plant with a hydroelectric plant. The two dams were rebuilt in 1917. The present plant was constructed in 1930-31. The race was widened on the southwest side...