F. A. Bartlett Tree Expert Co. v. Stamper

• Decision Date: 13 January 1948
• Citation: 306 Ky. 311,207 S.W.2d 752
• Parties: F. A. BARTLETT TREE EXPERT CO. v. STAMPER.
• Court: Kentucky Court of Appeals

207 S.W.2d 752

306 Ky. 311

F. A. BARTLETT TREE EXPERT CO. v. STAMPER.

Court of Appeals of Kentucky

January 13, 1948

Appeal from Circuit Court, Rowan County; John J. Winn, Judge.

Action by Clifford Stamper against the F. A. Bartlett Tree Expert Company for damages. From the judgment, defendant appeals.

Reversed and remanded.

Thomas D. Theobald, Jr., of Grayson, for appellant.

J. H Powers, of Morehead, for appellee.

KNIGHT Justice.

Appellant under contract with the Kentucky-West Virginia Power Company was, previous to March 10, 1946, engaged in constructing a pole line along Little Perry Creek in Rowan County. In that operation it was necessary to cut certain trees and underbrush along the right-of-way so that the poles could be set and the power lines strung.

Appellee brought this suit against appellant for damages in the sum of $625, alleging that the operation was conducted in a careless and negligent manner by appellant, its agents and employees, in that they left trees, brush and debris, which they had cut, in and along the creek at points where they could and did wash down said stream and over and against the property of appellee, obstructing and blocking the progress of the water in said stream as to cause a bridge, the property of the appellant, to be washed out and destroyed, the crops to be destroyed and some lumber and wood belonging to him to be washed off and lost to the appellee. He prays for damages in the sum of $500 for the loss of the bridge, $100 for loss of his crops, and $25 for the loss of the lumber and wood.

Trial of the case resulted in the verdict by the jury in favor of appellee for the full amount prayed for. From that verdict and judgment thereon appellant prosecutes this appeal.

Proof in the Case.

Appellee's proof was in substance that employees of appellant cut along the right-of-way referred to and near the creek a large sycamore tree about 22 feet long as 19 inches at the butt, and other timber which it left near the creek; that on May 10, 1946, a heavy rain fell and the resultant high water washed the sycamore tree and other brush and chunks against his bridge tearing it up and destroying it; that before the bridge went out the logs and debris formed a dam which caused the collected water to pass over and damage about half an acre of his corn and to wash away about 500 feet of loose lumber which he had for use in his coal yard; that the bridge was built of stone, concrete and wood, and was rebuilt by appellee at a cost of $576.75 for team work, man work and his own work. There was no break-down of this figure and nothing to show how the cost was arrived at. There was no testimony as to the value of the crops destroyed and the only testimony concerning the lumber lost was that there were about 500 feet of it and that it was worth $45 per thousand feet. All of appellee's testimony was to the effect that on the date referred to there was a hard but not an unusual rainfall.

The testimony for the appellant was in substance that none of the trees or logs that were cut were left in the creek but were put out of what was thought to be the highwater mark; that the big sycamore log referred to was left on top of the bank above the evidences of ordinary water in the creek and that no brush was left in the creek; that on May 10, 1946, there was an unusually hard rain, resulting in a flash flood which got over the main highway No.

60, and that people were forced to move out of their homes along the creeks.

The Law of the Case.

In its brief appellant lists as grounds for reversal the following (1) Error of the court in over-ruling appellant's demurrer to the petition as amended. (2) Over-ruling its motion for peremptory instructions at the close of appellee's evidence. (3) Over-ruling its like motion at the close of all the evidence and on the whole case. (4)...