Mesa City v. Lesueur

• Decision Date: 18 June 1920
• Docket Number: Civil 1769
• Parties: MESA CITY, a Municipal Corporation, Appellant, v. J. W. LESUEUR and G. C. SPILSBURY, Copartners Doing Business Under the Firm Name and Style of LESUEUR-SPILSBURY COMPANY, Appellees
• Court: Arizona Supreme Court

190 P. 573

21 Ariz. 532

MESA CITY, a Municipal Corporation, Appellant, v. J. W. LESUEUR and G. C. SPILSBURY, Copartners Doing Business Under the Firm Name and Style of LESUEUR-SPILSBURY COMPANY, Appellees

Civil No. 1769

Supreme Court of Arizona

June 18, 1920

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Affirmed.

STATEMENT OF FACTS.

This was an action by the appellees to recover damages from the appellant for the negligent flooding of a cellar warehouse whereby the goods and merchandise of the appellees, stored in the cellar, were damaged and destroyed. The principal undisputed facts of the case are correctly stated in the brief of counsel for appellees, as follows:

"The city of Mesa in 1916 undertook to construct a city sewer system within the city. To this end the city entered into a contract with a contracting firm to construct the sewer system according to plans and specifications therefor prepared by an engineer employed by the city for that purpose.

"The contract under which this sewer system was constructed provided that all the work of the contractors should be done 'under the direction and to the satisfaction of the engineer of the said town.' And it was done.

"The contract further provided that the contractor should make such connections with the sewer as the property owners along the line should desire, and extend such connections to the property owners' property line.

"One of the main lines of the sewer system installed by the city under the contract was laid down the center of McDonald Street in said city, and was laid at a depth of eight or ten feet. McDonald Street runs north and south at right angles with Main Street, the principal business street in Mesa. The First National Bank of Mesa owned and occupied its lot on the corner of Main and McDonald Streets, facing north on Main Street thirty-four feet, and east on McDonald Street seventy-seven feet. The plaintiff company was engaged in a general merchandise business in Mesa. Their store fronted on Main Street immediately west of the bank. The company also owned and occupied in connection with their store a warehouse situated immediately south of the bank building and fronting east on McDonald Street. Along the east property line of McDonald Street there was reserved and used as a sidewalk a strip ten or twelve feet in width, and for many years prior to the building of the city sewer an irrigating ditch had been constructed and used by the city for carrying irrigating water to the city lots, which ditch ran along the outer edge of the space reserved for sidewalk.

"At the time the sewer system was built and the connections above mentioned were made, the bank had constructed a cement sidewalk along the east line of its property on McDonald Street, which cement sidewalk covered the entire sidewalk reservation from its building to the irrigating ditch above mentioned -- width of ten or twelve feet -- and had also replaced the irrigating ditch above mentioned, with cement gutter the length of its sidewalk.

"Thereafter the irrigating water flowed in said gutter to the end of the sidewalk, and then dropped into the earth irrigating ditch above mentioned. Running south from the south end of the bank sidewalk and through the center of the reserved sidewalk space above mentioned was a narrow sidewalk about three feet in width, leaving a space of three or four feet in width between the sidewalk and the buildings on one side and the irrigating ditch on the other unpaved.

"the sewer contractor in performance of his contract with the city was required to make a sewer connection with the bank building at a point about six or eight feet north of the south end of the wide cement sidewalk above mentioned. In order to avoid the inconvenience of having to tunnel and excavate a trench under the whole width of the wide sidewalk in which to lay this sewer connection, the contractor dug the trench along or near to the south end of the wide sidewalk to the basement wall of the plaintiff's warehouse, thus cutting through the earth irrigating ditch above mentioned, and then scooped the earth out from under the wide cement sidewalk and threw it up on each side of the narrow sidewalk. After laying the connecting pipe to the property line of the bank building, the contractor threw back the earth into the excavation thus made, and, instead of tamping it firmly and compactly, as his contract required, attempted to settle it by letting water into it. After thus settling the earth-filled trench, this earth fill settled, and left a depression where the excavation had been and in which the sewer connection was laid. About one year thereafter the earth irrigating ditch above referred to broke at the point where it had been intersected and cut by the contractor in laying this sewer connection, and the water from this irrigating ditch followed the depression along the line of the insufficiently and improperly filled excavation made by the contractor in laying the bank sewer connection, and ran through the basement wall of the plaintiff's warehouse, filling it to a depth of six to eight feet with water, and damaged the goods and merchandise of the appellees."

The appellees in their complaint claimed $5,000 damages, and the jury returned a verdict in their favor in the sum of $2,500.

Mr. G. W. Silverthorn and Mr. F. H. Swenson, for Appellant.

Messrs. Kibbey, Bennett & Jenckes, for Appellees.

OPINION

BAKER, J. (After Stating the Facts as Above.)

The only reasonable construction of the verdict in this case is that the negligence of the appellant in excavating the trench from the main line of the sewer laid down in the middle of McDonald Street to the basement wall of the appellee's warehouse and insufficiently tamping down the loose earth returned to the trench was the proximate cause of the damages to the appellees' goods and merchandise. This is the negligence or fault charged in the complaint. It is maintained by the appellees that the uncontradicted evidence shows that when the irrigating ditch broke at the point of its intersection with the trench the water escaping from the irrigating ditch flowed down the depression in the trench, caused by the insufficient tamping, to the basement wall of the warehouse, and thence made its way into the cellar, and did the damages complained of. The appellant does not seriously contend that it was not negligent in the work of excavating the trench and insufficiently tamping down the loose earth thrown back into the trench, but seeks to avoid liability for the damages suffered on the theory that its negligence was not the proximate cause of the damages complained of, for the reason that the water was let out of the irrigating ditch into the negligently filled trench by a gopher, or other burrowing animal, in the banks of the irrigating ditch, and that such work of the gopher, or other burrowing animal was an intervening cause without which the damages complained of would not have happened, and that therefore the appellant is not liable.

The correctness of the appellant's assumption that the break in the banks of the irrigating ditch was caused by a gopher or some other burrowing animal might well be questioned. There is much evidence in the record, pro and con, upon the...