Green Const. Co. v. Chicago, RI & P. Ry. Co.
| Decision Date | 21 June 1933 |
| Docket Number | No. 753.,753. |
| Parties | GREEN CONST. CO. v. CHICAGO, R. I. & P. RY. CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Walter D. Hanson, of Oklahoma City, Okl. (F. A. Rittenhouse and John F. Webster, both of Oklahoma City, Okl., on the brief), for appellant.
John Barry, of Oklahoma City, Okl. (W. R. Bleakmore, W. L. Farmer, and Robert E. Lee, all of Oklahoma City, Okl., on the brief), for appellee.
Before PHILLIPS and McDERMOTT, Circuit Judges.
On October 1, 1929, the Construction Company entered into a contract with the city of Oklahoma City to construct two storm sewers in the vicinity of a trestle maintained by the M. K. & T. Railway Company over an old channel of the Canadian River in such city. In constructing a new line of railroad across the M. K. & T. Company's right-of-way, the Rock Island Company had laid a 48-inch drain tile in the old channel under such trestle and filled up the remaining space with earth.
Between five twenty o'clock in the afternoon of June 14, 1930, and seven o'clock the morning following, 6.96 inches of rain fell in Oklahoma City, and resulting flood waters damaged the sewers being constructed by the Construction Company.
The Construction Company brought this action against the Rock Island Company, alleging that the drain and earthen fill constituted an obstruction in the old channel, a natural water course, and caused the damages.
Green, a witness for the Construction Company, testified that the flood waters accumulated back of the tile drain under the trestle; that the flood waters deposited a large quantity of sand in the outfalls of the sewers, rendered much of the existing excavation useless, and made it necessary for the Construction Company to do additional and deeper wet excavation, and to drive additional sheet piling; and that the resulting damages to the partially constructed sewers amounted to $17,055.34. Green also stated that he arrived at the amount of such damages by computing daily the cost of the actual additional work done, which would not have been required had the physical conditions continued as they existed before the rainfall. He further testified, as did Banks, a witness for the Rock Island Company, that the rainfall alone would have caused some of the damages.
Barnett, a witness for the Rock Island Company, testified that he had been employed by the Construction Company in the work on such sewers; that flood waters from the river below the trestle backed up into the old channel; that he did not notice any additional wet excavation being done after the...
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Bainbrich v. Hammond Iron Works
...464, 90 L.Ed. 562; Chicago, Rock Island & Pac. Ry. Co. v. Kifer, supra; Chambers v. Skelly Oil Co., supra; Green Const. Co. v. Chicago, R. I. & P. Ry. Co., 10 Cir., 65 F.2d 852. Furthermore, if it be assumed that we have the power to review the denial of the motion for a new trial, an exami......