Engler v. Aldridge
| Decision Date | 29 January 1938 |
| Docket Number | 33617. |
| Citation | 75 P.2d 290,147 Kan. 43 |
| Parties | ENGLER v. ALDRIDGE. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A contractor undertaking a highway improvement is obligated by his contract and bond to perform according to the plans and specifications furnished by the State Highway Commission, and he can neither change the plans nor quit the work because he believes the improvement as projected is bad from an engineering standpoint. Gent.St. 1935, 68-407 to 68-410.
An independent contractor performing, with proper care and skill, a contract with State Highway Commission for construction of highway improvement authorized by statute according to plans and specifications therefor is not liable to abutting property owners for resulting damages. Gen.St.1935, 68-407 to 68-409.
An independent contractor performing a contract with the State Highway Commission for construction of a highway improvement authorized by statute according to plans and specifications therefor is not liable for damages sustained by abutting property owner occurring after contractor has completed the work and turned it over to the commission, notwithstanding that damage may have resulted from contractor's failure to perform properly his contact. Gen.St. 1935, 68-407 to 68-409.
An independent bridge contractor erecting bridge over river pursuant to contract with State Highway Commission was not liable to abutting property owner for damages caused by the flooding of the property after bridge was completed and turned over to commission, where contractor constructed bridge according to commission's plans and specifications and without neglect of any duty owed to property owner notwithstanding that contractor may have known that plans and specifications were unsound as a matter of engineering practice. Gen.St.1935, 68-407 to 68-410.
1. An independent contractor, who performs a contract with the State Highway Commission for construction of a highway improvement authorized by statute according to the plans and specifications therefor and with proper care and skill, is not liable to abutting property owners for resulting damages.
2. An independent contractor, under the circumstances mentioned above, is not liable for damages sustained by an abutting property owner occurring after the contractor has completed the work and turned it over to the State Highway Commission though the damage may have resulted from the contractor's failure to properly perform his contract.
Appeal from District Court, Clay County; Edgar C. Bennett, Judge.
Action by Ned W. Engler against R. G. Aldridge, doing business as the Aldridge Construction Company, to recover damages caused by the alleged negligence of the defendant in the construction of a bridge and highway improvements. From the judgment, the plaintiff appeals.
Affirmed
C Vincent Jones, W. M. Beall, and Wayne W. Ryan, all of Clay Center, for appellant.
Oscar E. Peterson, of Clay Center, for appellee.
Plaintiff brought his action to recover damages caused by alleged negligence of the defendant in the construction of a bridge and highway improvements. In response to rulings of the trial court, certain amendments were made to the petition, and thereafter a demurrer to the petition as amended was sustained. Plaintiff appeals from that ruling.
Omitting much of the detailed allegations, it was alleged in the amended petition that the plaintiff was the owner of certain lands in Clay county, Kan., bordering on the east bank of the Republican river and immediately south of U.S. highway No. 24 (formerly No. 40), and that in October, 1934, plaintiff contracted with the State Highway Commission to convey to the state of Kansas for highway purposes a tract of about six acres bordering the public highway for a consideration of $851.49. This contract specified the price to be paid for the lands to be deeded and for removing fence, and further "Any and all verbal agreements are merged in this written contract and it is understood and agreed that the consideration for said real estate above stated is in full payment for the purchase of said real property and all other damages arising from the transfer of said property and its use for the purposes set out."
The deed provided was duly executed and delivered. There were allegations with respect to the course of the river and the conditions of the surrounding country upstream from plaintiff's land and that on plaintiff's land a strip about 180 feet wide next to the river was 2 to 3 feet higher than the lands to the east thereof, which strip was covered with underbrush and trees. It was also alleged that defendant Aldridge was a bridge contractor, and under a contract with the State Highway Commission erected a bridge upon a portion of the lands purchased from plaintiff, and in so doing carelessly, negligently, and wrongfully removed the trees and underbrush from the bank of the river and removed dirt in such manner as to lower the surface about 4 1/2 feet; that plaintiff protested against removal of the trees and brush and the digging of the ditch; that defendant built a high fill or grade on the east side of the erected bridge for approaches to the highway, the fill being about 6 feet higher than it formerly was. It was also alleged that the plans and engineering under which the work was done were fundamentally defective, in that it was unnecessary to cut the ditch or to remove the trees and that efficient floodgates should have been installed to prevent water from coming through the ditch and damaging plaintiff's land; that floodgates were practicable; that the work as planned and done was so obviously and patently defective in engineering and workmanship an ordinarily prudent man could and should have foreseen that damage would result to plaintiff's land. It was further alleged that in June, 1935, the river went out of its banks and flooded the surrounding lands; that during said time the waters collected and flowed through the ditch and depression caused by the wrongful removal of the trees underbrush, and bank, and on to plaintiff's land, causing the cutting of holes, and the deposit...
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