T.B. Jones & Co. v. Ferro Concrete Const. Co.

• Decision Date: 27 May 1913
• Citation: 156 S.W. 1060,154 Ky. 47
• Parties: T. B. JONES & CO. v. FERRO CONCRETE CONST. CO. et al.
• Court: Kentucky Court of Appeals

156 S.W. 1060

154 Ky. 47

T. B. JONES & CO. v. FERRO CONCRETE CONST. CO. et al.

Court of Appeals of Kentucky.

May 27, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by T. B. Jones & Co. against the Ferro Concrete Construction Company and another. From a judgment of dismissal, plaintiff appeals. Reversed and remanded for further proceedings.

Sheild & Campbell and Camden R. McAtee, all of Louisville, for appellant.

E. P Humphrey, John Marshall, and Wm. W. Crawford, all of Louisville, for appellees.

HOBSON C.J.

The commissioners of sewerage of Louisville, acting under the statute, made plans for the construction of a system of sewers, divided the sewers into sections, and took bids for the construction of the different sections. One of the largest sewers was the Southern Outfall, extending westwardly through the southern part of the city and emptying into the Ohio river west of the city. Section A of this sewer extended from the river to the east bank of Paddy's run; section B extended from the east bank of Paddy's run to Thirty-Second street and Woodland avenue. Section A was let to the Ferro Concrete Construction Company; section B to T B. Jones & Co. Paddy's run is one of the old natural sewers of the city which carries off the water from a large water shed. The line of the proposed Southern Outfall sewer crossed Paddy's run. At this point Paddy's run is over 100 feet wide and 25 feet deep from the top of the bank to the bottom. At ordinary times, the water in Paddy's run is only a foot or two deep, but in case of a heavy rainfall a great quantity of water is collected in it.

T. B. Jones & Co. began to work on section B before work was begun on section A. They sunk a wooden sheathing of heavy planks about five feet east of the beginning point of section B, and then began excavating eastwardly. They built in the western end of the sewer a brick bulkhead with Portland cement, which was attached to the side walls. This bulkhead was a few feet east of the wooden sheathing; the entire space between being filled with dirt. The bulkhead was braced inside the sewer with heavy timbers; its purpose being to keep the water of Paddy's run from getting into the sewer in time of freshet. The sewer contained a great deal of machinery and other property of the contractors, and at its completion was to be inspected before acceptance, and therefore it was necessary to have it clean and in good condition every way. When the Jones Company had completed their sewer for a distance of about 1,600 feet east of the beginning point on Paddy's run, and were extending their excavation further to the east, the Ferro Concrete Construction Company was likewise coming eastward with its work on section A, beginning at the river. In February, 1909, it undertook to cross Paddy's run; the plans here requiring that the sewer should lie wholly, or almost wholly, below the bed of the creek. To this end the Ferro Concrete Construction Company began excavating across the bed of the creek; the dirt taken out being dropped in the creek bed below the excavation and by the side of it. Excavations were also made in both banks, and this dirt was also piled in the creek bed. In excavating on the east bank, they went across the Jones line and removed the sheathing and all the dirt in front of the Jones brick bulkhead. The dam in the creek formed from the dirt they took out became 30 or 35 feet high above the excavation bottom. To carry off the waters of Paddy's run two 12-inch tiles were laid down when the excavation was begun, but the earth spread out so at the bottom that these pipes were more or less obstructed. In this condition of things, there were heavy rains in February from which a large quantity of water accumulated against the dam and rose within five feet of its top, submerging the bulkhead entirely; the drain tiles in the dam being clogged. The danger to Jones & Co. in this condition of things became apparent, and the matter was taken up between the two contractors and the sewerage commission; but before anything was done, and when, according to the proof, the trouble might have been remedied before any damage had been done, on the morning of February 24th the bulkhead could stand the strain no longer and gave way. The flood stood 26 feet deep in the Jones sewer at the eastern end. Four days were consumed in pumping the water out, and the machinery had to be repaired; the débris had to be removed; and considerable damage was done to the Jones equipment. Jones & Co. brought this suit against the commissioners of sewerage and the Ferro Concrete Construction Company to recover the damage which they thus sustained, and, at the conclusion of the evidence which showed the facts we have stated, the circuit court peremptorily instructed the jury to find for the defendants. The plaintiffs' petition having been dismissed, they appeal.

The circuit court, in an opinion which is filed in the record, stated, in substance, that the sewer commission is not responsible because they were acting in a governmental capacity in a work undertaken for the benefit of the health of the city (Smith v. Com. of Sewerage, 146 Ky. 562, 143 S.W. 3, 38 L. R. A. [N. S.] 151); and that, if the governmental authority itself is not responsible, the agent employed by it is not responsible. Blue Grass Traction Co. v. Grover, 135 Ky. 685, 123 S.W. 264, 135 Am. St. Rep. 498. Concluding its opinion the court said: "The matters complained of here, as it seems to the court, tend to establish negligence on the part of the Ferro Concrete Construction Company; yet under the authorities I have just referred to, and under the construction of the law as made by the Court of Appeals, it is my duty to instruct you peremptorily that there is no cause of action in favor of the plaintiffs. I do it with considerable regret in this case. Personally I think it is a case that ought to go to the jury, but I am bound to follow the decisions of the Court of Appeals, and it is my duty to so instruct you." Counsel assail both these conclusions of the court, and, as they depend upon different principles, they will be considered separately.

1. As to the liability of the sewerage commission. We have held in a long line of cases that the city is not liable for the negligence of its servants in the discharge of its governmental functions. Twyman v. Frankfort, 117 Ky 518, 78 S.W. 446, 25 Ky. Law Rep. 1620, 64 L. R. A. 572, 4 Ann. Cas. 622; Kippes v. Louisville, 140 Ky. 423, 131 S.W. 184, 30 L. R. A. (N. S.) 1161; City of Bowling Green v. Rogers, 142 Ky. 559, 134 S.W. 921, 34 L. R. A. (N. S.) 461; Allison v. Cash, 143 Ky. 679, 137 S.W. 245; Smith v. Commissioners of Sewerage, 146 Ky. 562, 143 S.W. 3, 38 L. R. A. (N. S.) 151, and cases cited. We deem it unnecessary to restate the reasons impelling this conclusion as they are fully set out in the opinions referred to. In the case last cited it was...