De Kalb County v. Tennessee Electric Power Co.

• Decision Date: 08 July 1933
• Citation: 67 S.W.2d 555
• Parties: DE KALB COUNTY v. TENNESSEE ELECTRIC POWER CO.
• Court: Tennessee Supreme Court

67 S.W.2d 555

DE KALB COUNTY v. TENNESSEE ELECTRIC POWER CO.

Court of Appeals of Tennessee, Middle Section.

July 8, 1933.

Rehearing Denied July 29, 1933.

Certiorari Denied by Supreme Court January 13, 1934.

Appeal in Error from Circuit Court, De Kalb County; R. W. Smartt, Judge.

Action by De Kalb County against the Tennessee Electric Power Company. From a judgment dismissing the suit, plaintiff appeals in error.

Affirmed.

R. L. Turner and P. C. Crowley, both of Smithville, for De Kalb County.

T. Pope Shepherd, of Chattanooga, for Tennessee Electric Power Co.

DE WITT, Judge.

This action was brought by De Kalb county against the Tennessee Electric Power Company to recover damages for the destruction of a bridge across Caney Fork river at Holmes creek, which bridge was owned by the county. The bridge was washed away on the night of Saturday, March 23, 1929, by an unprecedented flood in Caney Fork river. The county claimed that this was the proximate result of negligence and improper manipulation of the dam owned and maintained by the Tennessee Electric Power Company at Rock Island, situated 58 miles by river above the bridge; also the proximate result of negligent maintenance of a dam at McMinnville, across Barren fork of Collins river, 25 miles by river above the Rock Island dam. It is claimed that the company improperly and negligently caused an unnatural and excessive volume and pressure of water to go down the Caney Fork river, augmenting the natural volume of water to the extent that it washed away the bridge.

The defendant resisted the action on the grounds that it was not guilty of any negligence or improper use of the dam at Rock Island, or manipulation of its gates; that the gates were operated so that no more water was passed over the dam or through the gates than was coming into the pond above the dam; that the break which occurred in the McMinnville dam had no effect upon the bridge, no part in the destruction of it; and that the damage suffered by the county was due solely to the act of God, as it was caused solely by the natural rise of the river and flow of its waters due to an unprecedented rainfall.

Upon the trial to a jury, at the close of the evidence in behalf of the county, the circuit judge sustained a motion for a directed verdict in defendant's favor on the third count of the declaration, which was based on the alleged negligence in maintaining the McMinnville dam; and at the close of all the evidence the circuit judge sustained a motion for a directed verdict in favor of the defendant on the other two counts of the declaration, holding that the facts were undisputed; that during the great rain and flood the defendant kept the water at the Rock Island dam at a uniform level as long as the same could be regulated by the opening of flood gates; that thereafter the defendant could have no control over the flood, and there was therefore no negligence shown on its part. He thereupon dismissed the suit upon the directed verdict, and his action in so doing is the principal ground relied upon for reversal of the judgment of dismissal.

The question here presented is whether or not there was any material conflict in the evidence; whether reasonable men might differ in their conclusions from the evidence if it is undisputed on all material matters. Defendant company's dam is 75 feet high, running 800 feet across the Caney Fork river just below the mouth of Collins river. This forms a pool or reservoir in the Caney Fork river and its tributaries, comprising something over 2,300 acres. The Caney Fork river and its tributaries drain a total area of about 2,600 square miles, 1,640 square miles being above the dam. The river rises in the Cumberland Mountains, as do its principal tributaries above the dam, Rocky river, Calf Killer river, Collins river, and Cane creek. The river is subject to sudden rises due to the fact that these streams run through rocky gorges or canyons for the most part. About 25 miles above the dam along the course of Collins river and its tributary Barren Fork river, and at McMinnville, was another dam across Barren Fork river, also maintained and operated by the defendant corporation for use in generating electric current. One of the charges of negligence in this cause against the defendant company is that this dam was defective and a part of it washed out during the flood, suddenly releasing a large volume of water.

Between Collins river and Caney Fork river at the main dam is a narrow but high neck of land through which the defendant company constructed a tunnel, which carries the water to the Caney Fork side, where it drops perpendicularly through steel chutes to a power house, and by the operation of turbine engines causes the generation of electric current by other machinery. This power house is situated about three-fourths of a mile in a gorge of the river below the dam. The water so used passes through the power house and through tailraces in the Caney Fork river. The dam is built of concrete and is Taintor gate or flood gate type, and it is one of the standard recognized types of dam. Set in the face of the dam and forming a part of it are eighteen of these Taintor gates, each 14 feet high and 25 feet wide, so arranged that they can be raised or lowered mechanically to any desired height. The top of each gate is set flush with and forms a part of the dam. It appears that this type of power dam is extensively used by power companies, and that the purpose of the gates is to control the level of flood waters in so far as possible by opening the gates and passing along the flood waters which flow in above the dam.

On the afternoon and night of Friday, March 22, 1929, there was a tremendous and general rain over the entire drainage basin of the Caney Fork river. In the region above the Rock Island dam the rainfall was between 8 and 10 inches. Below the dam it was about 6 inches. The evidence shows without dispute that in the region above the dam this rain produced the heaviest flood in the streams within the memory of living persons, or according to the records which had been kept. This rainfall appeared between the evening of Friday, the 22d, and about 4 a. m. on Saturday, the 23d. The water rose very rapidly in all the streams from Friday night until about noon on Saturday. It was not until 9 o'clock on the night of Saturday that the flood arose so high as to damage the bridge 58 miles below the dam. About that hour one section of the bridge was washed away. Another section was washed away about midnight. The water rose to the height of about 60 feet at the site of this bridge by that time. The rain had virtually ceased very early in the morning of Saturday, so that the flood reached its height from seventeen to twenty hours after the rain had ceased. The evidence shows without dispute that the current of the river below the dam ran during this time at the rate of 8 to 10 miles an hour. The evidence shows without dispute that about 5:30 p. m. on Friday, the operators of the dam discovered that the water was rising above the dam, so the first gate was raised, releasing from the pond above the dam a stream of water 14 feet high and 25 feet wide; that thereafter, as will be shown in detail, the gates continued to be raised at intervals, releasing the water until about 3 a. m. on Saturday; and that during this time the pool level was maintained uniformly at about six-tenths of a foot above the dam, which was according to the rule of the defendant company, until the flood came beyond control. During all of this time the water was flowing both through the gates which had been opened and over the dam. Of course, this shows undisputably that there had been a great augmentation of water coming rapidly down the river and to the dam. If no gates had been opened, this water would have flowed over the dam. If there had been no dam, this water would have flowed on through the gorge where the dam is situated and on down the river. Before the last gate had been opened, it was no longer possible to control the flood by maintaining the pool level at six-tenths of a foot above the dam. The evidence is undisputed that finally the water rose to a height of 15 feet above the dam at Rock Island, and at the same time it was rushing through eighteen open gates.

The work of raising the gates was done by foremen with their assistants in shifts of eight hours each. At 6:30 p. m. on Friday, the second gate was raised. The pool level was more or less standard until 10:15 p. m., when another gate was raised; another was raised at 10:40; another at 11; another at 11:15; another at 11:25; another at 11:45; another at 11:55; another at 11:59; another at 12:10; another at 1:45; then others at 1:55; 2:20; 2:30 (two gates); 2:40; 2:45. At 3:05 the last gate was raised. These gates were thus raised rapidly in succession; water was pouring over the top of the dam; the pond was rising all the time; but the level of about six-tenths of a foot above the dam was maintained until it was no longer possible.

Only one conclusion can be drawn from these facts — that until the last gate was raised no more water was going out than was coming in. Of course, after this time this was also true, but the flood was far greater. The amount of flood and the pressure of the water, after the effect of raising all the gates was over, cannot be considered in any view as involving negligence on the part of the defendant company.

It can only be concluded from the evidence that if no gates had been raised about the same volume of water would have gone over the top of the dam, and that the same water that went through the gates would have gone over the dam. It is insisted that the defendant company was negligent in not opening all the gates in the afternoon of Friday, the 22d; that if this had been done the water which would have gone through at that time would have been water which was merely stored up above the dam...