Meeker v. City of Clinton

• Decision Date: 23 November 1977
• Docket Number: No. 59113,59113
• Citation: 259 N.W.2d 822
• Parties: Glenn and Sylvia MEEKER, Donald and Louise DeWitt, Sr., Alan A. and Julie Busch, Sr., Harold C. Stearns, Lloyd and Sandra Bousman, Randall and Carolyn Ewalt, Bernice Kuhse, Frieda Rannfeldt, Jess and Mary Robbins, Daniel R. Jones, Sikie Hass, A. L. Cheramy, Reuben Dyrdahl, d/b/a Dahl Construction Company, Robert and Donna Piper, Donald and Dixie Zimmerman, and Harold G. and Elayne E. Anderson, Appellants, v. CITY OF CLINTON, a Municipal Corporation and the Chicago and Northwestern Transportation Company, Appellees.
• Court: Iowa Supreme Court

Page 822

259 N.W.2d 822

Glenn and Sylvia MEEKER, Donald and Louise DeWitt, Sr., Alan A. and Julie Busch, Sr., Harold C. Stearns, Lloyd and Sandra Bousman, Randall and Carolyn Ewalt, Bernice Kuhse, Frieda Rannfeldt, Jess and Mary Robbins, Daniel R. Jones, Sikie Hass, A. L. Cheramy, Reuben Dyrdahl, d/b/a Dahl Construction Company, Robert and Donna Piper, Donald and Dixie Zimmerman, and Harold G. and Elayne E. Anderson, Appellants, v. CITY OF CLINTON, a Municipal Corporation and the Chicago and Northwestern Transportation Company, Appellees.

No. 59113.

Supreme Court of Iowa.

Nov. 23, 1977.

McDonald, McDonald & Stonebraker, Davenport, for appellants.

Lane & Waterman, Davenport, and Bruce C. Johanson, City Atty., Clinton, for appellee.

Gamble, Riepe, Burt, Webster & Fletcher, Des Moines, for appellee, Chicago and Northwestern Transp. Co.

Heard before MOORE, C. J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

Plaintiffs, Glenn and Sylvia Meeker, appeal from the trial court's order granting defendants judgment notwithstanding the verdict and in the alternative granting defendants a new trial in a law action brought to recover damages alleged to have been sustained as a result of flooding in a section of Clinton, Iowa.

On May 16 and 17, 1974, a flood occurred in a section of the City of Clinton when Mill Creek and Manufacturers Ditch overflowed their banks. August 12 over twenty individuals who lived in homes or owned businesses near the creek and ditch commenced the present action for damages ranging from $75.00 to $10,500.00 against the City of Clinton (the City) and the Chicago and Northwestern Transportation Company (the Railroad). Plaintiffs had alleged defendants were negligent in failing to remove debris from the creek and ditch and this debris caused the flood by which plaintiffs were injured as a theory for relief. Defendants in answer denied the material allegations of the petition.

After withdrawal or dismissal of some plaintiffs, the trial court for convenience separated the trial of Mr. and Mrs. Meeker, plaintiffs in the case before us. This case, tried only on the issue of liability, ended with a verdict for plaintiffs against both defendants. Defendants' post-trial motions for judgment notwithstanding the verdict and for new trial were granted and plaintiffs' motions to reconsider the separation order and for summary judgment were denied.

June 4, 1975, the day before trial, during an off-the-record pretrial conference, the court ordered the trials separated to avoid problems it envisioned concerning the huge number of verdict forms necessary to submit to the jury if all plaintiffs were to proceed to trial against the two defendants. Because of the minimal discussion on the record, it is impossible to determine whether plaintiffs objected at this point to the separation order. At the next pretrial conference the following day plaintiffs did object to the order and their objections were overruled by the court which stated they had agreed to its order at the conference the day before.

At trial plaintiffs attempted to show the debris in Mill Creek around the Railroad's trestle acted as a dam thereby causing the flow of the river to cease. According to plaintiffs the water then began flowing upstream to a point six miles away where it overflowed its banks and flooded the area in which plaintiffs' home was located. Plaintiffs also attempted to show the same general effect occurred in Manufacturers Ditch causing its waters to overflow at various points thereby adding to the flood which caused plaintiffs' damage.

By way of proof of these theories plaintiffs introduced the testimony of lay witnesses who lived in the inundated area. All but two of these witnesses were plaintiffs in the original action. Most of these witnesses testified, over objection, to the causes and effects of a flood which occurred in this area in 1973. The objections interposed by the Railroad on the grounds this testimony was incompetent, immaterial and irrelevant were overruled by the court.

Two of plaintiffs' witnesses who were originally plaintiffs were allowed to testify over defendants' objections of no proper foundation, incompetency, immateriality and irrelevancy that in their opinion the cause of the 1974 flood was the debris in the creek and the ditch.

In this hotly contested trial many objections were raised to the testimony and exhibits the parties attempted to have admitted. The substance of this evidence and the objections to its admission will be discussed later.

At the close of plaintiffs' evidence the City moved for a directed verdict and the Railroad moved for involuntary dismissal and to strike certain testimony. In these motions defendants contended plaintiffs' evidence was insufficient to establish negligence or proximate cause as to either defendant. The court reserved ruling on these motions and the trial continued. At the close of all evidence defendants renewed their motions which were then denied.

Before closing arguments, the City objected to several of the trial court's proposed instructions. After the court had redrafted some of them, it overruled the City's objections to the extent they were cured by the redrafting.

During unrecorded final argument plaintiffs' counsel apparently referred to the Railroad's engineering witness as a witness for hire and in his explanation of the testimony received at trial intermingled the evidence of the 1973 and 1974 floods. Immediately after the arguments, the Railroad moved for a mistrial on the grounds there was no evidence the witness was compensated and plaintiffs' counsel had confused the jury by intermingling the testimony about the two floods. This motion was denied.

After verdict for plaintiffs both defendants filed post-trial motions. The City moved for stay, for judgment notwithstanding the verdict or new trial. It based its judgment motion on plaintiffs' failure to prove causation as a matter of law. It based its new trial motion on the following brief and general grounds: (1) the verdict was not sustained by the evidence; (2) there were errors of law in the admission of exhibits; (3) there were errors of law in the instructions; and (4) the grounds asserted in its judgment motion were also applicable here.

The Railroad's motion for judgment notwithstanding the verdict was based on plaintiffs' failure to introduce sufficient competent evidence to warrant a finding the Railroad was guilty of negligence or that its negligence, if any, was the proximate cause of the flood. In its motion for new trial the Railroad asserted the court had erred in admitting lay opinion testimony; in admitting testimony relative to the 1973 flood; in instructing the jury; and in failing to sustain the Railroad's motion for mistrial.

In plaintiffs' motion to reconsider the separation order they asserted no reason existed for the separation since the court had withdrawn from consideration the issue of contributory negligence. While awaiting a ruling on this motion, plaintiffs sought a writ of certiorari from this court which was subsequently denied.

The trial court ruled December 19, 1975, as follows:

" * * * co

"The Court had serious reservations as to the sufficiency of plaintiffs' case in overruling (at the close of all the evidence) the motions for directed verdict. However, in accordance with recommended practice, the trial court concluded to submit the case to the jury and thereafter rule on the sufficiency of the evidence on post-trial motions in the event of a verdict for plaintiffs, which verdict did in fact result.

"The Court now rules that defendants were entitled to a directed verdict at the end of all the evidence; that plaintiffs' allegations as to proximate cause are not supported by substantial, competent, preponderant evidence; that the preponderance is otherwise and favors defendants and that their motions must be sustained.

"Without undertaking a review of the voluminous testimony, the record as a whole discloses that on May 16, 1974, Mill Creek overflowed its banks at Harts Mill Road Bridge in Clinton, Iowa as a result of heavy rains upstream in the watershed of Mill Creek, discharging a large volume of water easterly into a 'valley' flood plain * * * causing flooding well above the top of drainage ditches and the same cannot be attributed to the negligence of defendants in permitting obstructions downgrade and downstream in Mill Creek, in ditches, at trestles or in culverts southerly of plaintiffs' place or to negligence in failing to dredge silt from the bottom of the five foot to six foot drainage ditches which were completely inundated in the plaintiffs' area. Plaintiffs' lay witnesses, interested in similar claims of their own, were allowed to give their opinions and testimony to the contrary, over objection, but their self-serving testimony is not found credible and the competency and admissibility thereof is seriously questioned.

"The whole record discloses that plaintiffs' flooding would have occurred in any event and without any negligence of defendants in the respects claimed. No portion of plaintiffs' damage, moderate as it was, is shown proximately caused by or allocated to the negligence of either defendant.

"The Court concludes that plaintiffs failed to generate a jury question as to proximate cause * * *."

The parties framed the following issues for our consideration:

1. Did the trial court abuse its discretion in ordering sua sponte a separation of plaintiffs for the purpose of trial where over twenty plaintiffs joined together to assert individual claims against two defendants?

2. Did the trial court err in admitting testimony as to the cause of a 1973 flood in a case concerning the cause of a 1974 flood?

3. Did the trial court err in admitting the opinions of two nonexpert witnesses as to the cause of the 1974 flood where neither witness observed the cause of the flood?

4. Did the trial court err...