The Board of County Commissioners of The County of Trego v. The Topeka Bridge & Iron Company

• Decision Date: 11 June 1921
• Docket Number: 22,799
• Citation: The Board of County Commissioners of The County of Trego v. The Topeka Bridge & Iron Company, 198 P. 954, 109 Kan. 223 (Kan. 1921)
• Court: Kansas Supreme Court
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF TREGO, Appellee, v. THE TOPEKA BRIDGE & IRON COMPANY, AND THE LION BONDING & SURETY COMPANY, Appellants

198 P. 954

109 Kan. 223

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF TREGO, Appellee, v. THE TOPEKA BRIDGE & IRON COMPANY, AND THE LION BONDING & SURETY COMPANY, Appellants

No. 22,799

Supreme Court of Kansas

June 11, 1921

Decided January, 1921.

Appeal from Trego district court; ISAAC T. PURCELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COUNTY-LINE BRIDGE--Defective Work and Materials--Action for Damages by County With Whom Contract was Made. Where a county contracts with a builder for the construction of a bridge on the county line and pays to the builder the full contract price, although the adjoining county reimburses the contracting county for one-half of the contract price, the latter county may maintain an action against the builder for damages for the entire contract price where the bridge, on account of noncompliance with plans and specifications, is destroyed by high water.

2. SAME--Proper Evidence to Prove Defective Workmanship and Materials. To prove that the workmanship and material in the concrete abutment of a bridge was defective, samples taken from the abutment after it had been blasted open with dynamite may be introduced in evidence.

3. SAME--Cracks in Concrete Bridge. Repairing cracks in a concrete bridge will not remedy defective workmanship and material used in its construction.

4. SAME--Approaches Not Designed to Support Bridge Abutments. Where a contract for the construction of a bridge does not provide that the approaches shall be so built as to support the abutments, the abutments should be so constructed that they, without the approaches, will support the bridge.

D. R Hite, of Topeka, and Herman Long, of Wa Keeney, for the appellants.

John R. Pardons, W. L. Sayers, J. O. Sayers, and J. S. Parker, all of Hill City, for the appellee.

Marshall J. Dawson, J., not sitting.

OPINION

MARSHALL, J.:

The plaintiff recovered a judgment against the defendants for damages sustained by reason of defective work and materials in a bridge built by the Topeka Bridge & Iron Company for the plaintiff, and the defendants appeal.

The bridge company entered into a contract with the plaintiff to build a cement bridge, according to certain plans and specifications, on the county line between Trego and Graham counties for $ 2,145, and gave a bond in that sum, signed by the bridge company and by the Lion Bonding & Surety Company, for the construction of the bridge in strict accordance with the plans and specifications, and for the indemnification of the plaintiff against any loss or injury which it might sustain by reason of any defect in workmanship, design, quality, or quantity of materials used in the bridge during the term of four years from and after its completion. The bridge was washed out and destroyed by high water within four years after it was completed.

The jury returned a verdict in favor of the plaintiff for $ 2,347.31, the amount paid to the bridge company for the construction of the bridge together with interest thereon. The answers of the jury to special questions showed that the bridge company did not construct the bridge in accordance with the plans and specifications; that the workmanship on the bridge was poor; that materials used in its construction were defective and of a grade inferior to that called for in the plans and specifications; that the poor workmanship and defective materials caused the bridge to give way under the pressure of high water; and that it would have been impossible to have repaired the bridge at any time after its completion.

1. The defendants complain of the following instruction:

"If you find by a preponderance of the evidence that the bridge in question was defective, either by reason of a defect in workmanship, design, quantity or quality of material used in its construction, and that such defect resulted from failure on the part of said bridge company to construct said structure in accordance with the plans and specifications set out in the contract, and if you further find that the plaintiff suffered any loss by reason of such defect or defects, then you will find for the plaintiff for whatever loss the evidence establishes that the plaintiff has suffered, not exceeding, however, the sum of $ 2,145 with interest from May 30th, 1918; unless you should further find that the collapse of said bridge was the result of the...