Evans v. Massman Construction Co.

• Decision Date: 04 April 1938
• Docket Number: No. 19115.,19115.
• Citation: 115 S.W.2d 163
• Parties: THOMAS W. EVANS, RESPONDENT v. MASSMAN CONSTRUCTION COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

115 S.W.2d 163

THOMAS W. EVANS, RESPONDENT v. MASSMAN CONSTRUCTION COMPANY, APPELLANT.

No. 19115.

Kansas City Court of Appeals, Missouri.

April 4, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.

AFFIRMED AND CERTIFIED TO SUPREME COURT.

Henderson & Deacy and Prince & Beery for respondent.

William Buchholz, Garrett & Ruark and Hume & Raymond for appellant.

SHAIN, P.J.

Plaintiff below was the owner of certain lands lying along the Missouri River in the vicinity of where defendant, a private contractor, constructed dike No. 314.1. This dike was constructed under a contract between defendant and the United States Government, and constituted a part of a general program of improvement of navigation on the Missouri River in that area. Plaintiff's land was damaged by overflow alleged to have been caused by the negligence of defendant in construction of the dike.

Suit was filed in the Independence division of the Jackson County Circuit Court. The cause was removed to the United States District Court on motion of defendant under the theory defendant was the agent of the Federal Government at the time the work was done and that there were Federal questions involved. In due time the cause was by the United States District Court remanded back to the state court, for the announced reason that the case was one based on negligence of defendant and that no Federal question was involved. A trial to a jury in the Independence Division resulted in verdict for plaintiff, but, upon motion a new trial was granted. Thereupon a change of venue was granted and the case was tried before another division of this circuit. From an adverse verdict and judgment, defendant appeals. The parties will be referred to as plaintiff and defendant.

The petition charges that "the defendant negligently constructed and erected and/or lengthened or elongated in said river, at a place south of and adjacent to levee district No. 2 in Ray and Carroll Counties, Missouri, certain dykes, revetments and matting in such manner and way as to narrow and compress the stream of said river into an area insufficient to permit the movement of said waters within the banks of said river. That the natural movement of the waters in said river at said point was thereby greatly obstructed and retarded and said water at the west of said artificial obstructions accumulated on or about June 21, 1932, in such a way as to heighten the surface of said river at said point. That this drove said waters against, upon and over the above mentioned levee, washing the same away and causing thousands of acres of crop laden land in said levee district, including plaintiff's land, to be overflowed and inundated and the crops and trees thereon to be destroyed, and subjecting plaintiff in common with other residents of said levee district to the burden of reconstructing said levee, and temporarily moving his family, his poultry and stock and his personal belongings from his said farm, and causing his home to become covered with mud and slime, damaging the floors and woodwork and causing plaintiff great inconvenience and hardships."

Defendant's answer pleaded that the Missouri River is a navigable stream and that the work it did "was done by it as agent or contractor of the United States and was done by it in the manner and form prescribed by the United States and in strict conformity with the plans and specifications furnished by the United States; that all of said work was done under the direction and supervision of the War Department of the United States, through its Engineers; and that said work has been accepted and paid for by the United States."

The reply was a general denial. The issue thus made by the pleadings was simply one of negligence on the part of defendant in the construction of the dike mentioned in the pleadings; of whether or not the work was in fact done "in the manner and form prescribed by the United States and in strict conformity with the plans and specifications," and without negligence; and, if not so done, whether the damage was a direct result of defendant's negligence, if any.

The evidence must be viewed in the light most favorable to plaintiff. It discloses that the dyke in question was built out from the south bank of the river, extending into and across the stream, towards the north shore, to a point 100 to 175 feet from the north bank; that the contract between defendant and the Government provided that defendant should be "responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work," and that defendant should strictly observe the laws of the United States affecting operations under the contract, and the United States would not be responsible for injury to private lands or other property by defendant. The dyke proper consisted of clumps of piling driven thru willow mats. Each clump consisted of three pilings driven into the bed of the river in a triangular formation, about five feet apart, the tops pulled together and tied with cable making a tripod effect. There was a row of clumps, spaced about 18 feet apart for a distance of 1200 feet, and a few feet down stream from this was a second row, the clumps of the second row spaced half way between those of the first. The remainder of the distance the dike consisted of three rows. The clumps were tied together with timbers or "stringers" at the top. The evidence further discloses that a fender mat was lashed to the pilings of the dike, the mat thus standing upright athwart the current of the river. This fender mat extended the whole length and was made of four inch boards stood upright at intervals of four inches, and woven over and under willow timbers laid crosswise with the boards. The purpose of the whole construction was to retard the flow of water, causing deposit of sand, silt and debris; to confine the current of the river within a more narrow channel; and to cause it to scour deeper in the open channel, and, at the same time, force the river gradually to the north, all in aid of navigation.

It was further shown that there was a standing order by the War Department providing that the Missouri River, at no point along its navigable course, should be obstructed or confined within a channel of less than two hundred feet; that an engineer, who was the chief inspector in charge of the improvement along this portion of the river, including the point where the dike was built by defendant, had given specific orders that the north extremity of the dike should not approach nearer than two hundred feet to the north shore of the river. There was evidence from which the jury could find that defendant knew of these instructions. The United States engineer in charge of river improvements in the Missouri River section, a witness, for defendant, stated in evidence that there was no need for fender or screen mat being erected across the river at this point. He had denied its existence in the previous trial and in this case testified it was only constructed for a distance of 707 feet from the south bank. There was no mention of such a mat either in the contract between the Government and defendant, or anywhere else in writing. But there was ample evidence of its construction. He also stated the effect of such a mat was to further retard the flow of the river and that the water above the dike was a foot higher than it was below, about the time of the levee break.

Plaintiff owned and operated a farm located within a levee district on the north side of the river opposite the point where the dike was constructed. The farm, and other lands within the district, was protected from floods by a levee. When construction on the dike had reached the point above mentioned the river began to rise rapidly and continued until the water overflowed the top of the levee and flooded the district, including plaintiff's farm. The water left the district after it burst open the flood gates thereof outward from the pent up force from inside the district.

It is plaintiff's contention that the construction of the dike across the current of the stream to a point less than two hundred feet from the north side was negligence, in that it was against a standing order of the War Department, against the orders of the chief inspector in charge of the improvement, and was not covered by the contract. He also contends that any person in the exercise of ordinary care, prudence and intelligence ought to have known that the current of a great river such as the Missouri could not safely be confined within an unobstructed channel less than two hundred feet wide. He also contends that the construction of the mat hereinbefore mentioned served to aggravate the situation and to further impede the flow of the water and to dam it up behind the dike, causing the river to leave its banks and rise from four to five feet higher upstream from the dike and levee, than it did below, thus overflowing the levee; that such construction was negligent under all circumstances shown; that such negligence was the direct and proximate cause of plaintiff's damage; and that the extension of the dike to a point less than 200 feet from the north bank, as well as the construction of the screen or fender mat, was beyond and in excess of instructions or authority of the United States.

The evidence offered showed that, just prior to the water going over the levee, the water upstream along the length of the dike was from four to five feet higher than it was on the downstream side of the dike; that the water "caseaded" over the dike; that the noise of the cascading water could be heard for a mile; and that the floodwater line on trees growing along the river bank was noted by witnesses, just after the flood receded, and that from such marks the water was from four to five feet higher upstream from the dike than it was downstream therefrom; and that the...