Northwestern Bell Telephone Co. v. Henry Carlson Co.

• Decision Date: 25 February 1969
• Docket Number: No. 10527,10527
• Parties: NORTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff and Appellant, v. HENRY CARLSON COMPANY, a corporation, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 346

165 N.W.2d 346

83 S.D. 664

NORTHWESTERN BELL TELEPHONE COMPANY, a corporation, Plaintiff and Appellant, v. HENRY CARLSON COMPANY, a corporation, Defendant and Respondent.

No. 10527.

Supreme Court of South Dakota.

Feb. 25, 1969.

May, Boe & Fisher, and Gale E. Fisher, Sioux Falls, for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for defendant and respondent.

HOMEYER, Judge.

In this action plaintiff, Northwestern Bell Telephone Company, seeks to recover for water damage to certain personal property alleged to have been caused by the negligence of the defendant, Henry Carlson Company. A jury found no liability and judgment was entered upon such verdict. Plaintiff's motion for a new trial was denied and this appeal followed.

Appellant's principal claims are (1) that the court should have directed a verdict for him upon the issue of liability leaving only for jury determination the amount of damages, and (2) if there is a jury question on liability, that the court erred prejudicially in its instruction on the defense of an act of God.

On plaintiff's appeal from judgment upon a verdict for the defendant, the evidence must be viewed in a light most favorable to the defendant and we must accept the evidence and any reasonable inferences therefrom which tend to support the verdict. Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 4 N.W.2d 213; Blakey v. Boos, S.D., 153 N.W.2d 305.

Plaintiff is the lessee of a three-story brick building approximately 100 foot square with full basement located at 132 South Dakota Avenue, in Sioux Falls. It is in the southwest corner of the block at the intersection of Dakota Avenue and Tenth Street. Dakota Avenue is a hardsurfaced north-south street and from Ninth to Tenth Street there is a slight slope to the south and towards the northeast corner of the intersection. Tenth Street is a paved east-west street and has a downward easterly slope of about 10 to 15 degrees past plaintiff's building. On the north side of the building there is a driveway off Dakota Avenue to an alley with a slope of about 30 degrees eastward. There are overhead doors on this side about 50 feet east of the sidewalk. Directly east of the overhead door is another door entrance with two steps from the alley level to the basement level. A down spout carrying water from the roof is located in this same There was evidence that some water had previously entered the basement in this vicinity.

The lessor, D & G Investment Company, ¹ contracted with the defendant for a general remodeling of the building which included removal and replacement of the existing sidewalk adjacent to the west side of the building. The old sidewalk was in poor condition. The new sidewalk was to be narrower since the city requested a wider street. Under a part of the old sidewalk there were rooms with a ceiling height of about 10 feet which had been used as coal bins. During the process of work the city dumped sand into manholes in the sidewalk and filled the areas separated from the building to about five feet below sidewalk level. The existing sidewalk with curb on the west side was demolished and the debris dropped above the filled in sand. The area of construction was barricaded from the streets by a wooden framework and a raised walkway was built for pedestrian use. The demolished sidewalk area was not covered and nothing was done to serve as a substitute or replacement for the demolished curb.

Prior to remodeling, ground seepage in the coal bin area was controlled by two-inch drain tile leading into a sump hole in the coal bin from which the water as it accumulated was pumped into the city sewer. Before sand was hauled in, defendant removed the old floor and installed four-inch drain tile which led to a new sump hole relocated under the elevator shaft inside the basement. Defendant also closed the doorways and other openings into the basement with cement block, except he left an opening of about four to six inches as a sleeve for gas pipes. This opening was located approximately 6 1/2 feet above the basement floor. An employee of plaintiff also testified there were seam-like cracks in the concrete or mortar at the top of the same wall about ten feet above the basement floor and just below the old sidewalk. Such was the condition of the premises when defendant ceased working on friday, September 9, 1966.

Between 12:15 a.m. and 4:35 a.m. on Sunday, September 11th, rainfall measuring 4.02 inches fell in Sioux Falls and water in a considerable amount gathered in the demolished area. Plaintiff contends defendant was negligent in failing to cover the old sidewalk and thus exposing it to the elements and in failing to barricade and protect the exposed area against rain and surface water. Consequently, it alleges water entered the open area and rose to a height where it got into the basement through openings in the west wall filling it to a depth of 12 to 13 inches and causing the damage for which it now seeks to recover. Defendant maintains it was not negligent, or that its negligence, if any, did not cause such damage, and as an affirmative defense alleged that the sole proximate cause of the damage was an act of God and such damage did not result from any negligence on his part. That plaintiff sustained substantial damage is not disputed.

Negligence and causation are basic to plaintiff's right to recover and the burden was upon plaintiff to prove each of them. Absence of either defeats recovery. Negligence has been defined as the failure to exercise ordinary care under the circumstances. Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153. The standard by which the conduct of the defendant must be tested is that of an ordinarily or reasonably prudent person acting under the same or similar circumstances. Whether negligence exists in a particular case must be determined by a consideration of all the facts and circumstances, Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739, and it is a fundamental rule that negligence to be actionable must be a proximate cause of the damage. Froke v. Watertown Gas Co., 68 S.D. 69, 298 N.W. 450. Questions of negligence and proximate cause are usually questions of fact to be decided by the jury and it is only when the facts are not in dispute or are such as to which reasonable men could not differ that they or either of them become a question of law to be decided by the court. DeBerg v. Kriens, S.D., 149 N.W.2d 410; Blakey v. Boos, supra.

Defendant plead and strongly relied upon the defense that the plaintiff's damage was caused solely by an act of God and did not result from any negligence on its part. In support of such position he called as a witness the meteorologist in charge of the Sioux Falls Weather Bureau Station. He testified to the amount of rainfall that fell during the interim mentioned supra and that at times the rainfall was so heavy that the recording gauge could not compute it and his figures were taken from the measuring gauge. It was a record rainfall for September since 1893 when records were first kept. The precipitation probability was 20% For Saturday night.

A pressman for the Sioux Falls Argus Leader testified that on Sunday morning between 2 a.m. and 3 a.m. he observed water rushing down Tenth Street to a width of about 8 to 10 feet out from the curb and about 12 inches over the curb and onto the sidewalk. He also said water entered the Argus Leader basement. The Argus Leader is located at the southeast corner of the intersection of Minnesota Avenue and Tenth Street which would be about one block west of plaintiff's building.

An employee of the city engineer's office testified he made a survey of rain damage following the occurrence to enable persons who had endured damage to receive federal assistance. His investigation disclosed that basements of at least 16 houses in all parts of Sioux Falls had caved in; that one was right on top of the hill at Minnesota Avenue; that calls of water damage to the police and fire departments were so frequent and sporadic that they were not logged. On the other hand plaintiff produced evidence showing or tending to show that...