Town of Douglas v. Lore, 3095
| Decision Date | 29 October 1962 |
| Docket Number | No. 3095,3095 |
| Citation | 375 P.2d 399 |
| Parties | TOWN OF DOUGLAS, Wyoming, a Municipal Corporation, Appellant (Defendant below), v. Valjean LORE, Mrs. Valjean Lore, Vinson Merritt and Hettie Merritt, Appellees (Plaintiffs below). |
| Court | Wyoming Supreme Court |
Maurer & Garst, Alfred J. Kaufman, Douglas, for appellant.
Arthur F. Fisher, Casper, for appellees.
Before BLUME, C. J., and PARKER, HARNSBERGER, and McINTYRE, JJ.
Plaintiffs, the owners and operators of a frozen food locker plant, sued the Town of Douglas, seeking an injunction and claiming damages which resulted to them in the flooding of their basement when the town flushed adjacent sewer lines. The trial court found generally for the defendant, and on appeal, Lore v. Town of Douglas, Wyo., 355 P.2d 367, this court said that the holding was contrary to the evidence since there was unrebutted testimony showing that the town had failed to exercise reasonable care. The cause was reversed and was remanded so that the trial court might have an opportunity to determine according to definite standards the care requisite under the circumstances. Thereafter under amended pleadings plaintiffs proceeded with the action, praying that damages be awarded and that the flushing and resultant floodings of plaintiffs' property be abated as a private nuisance. Although plaintiffs in the complaint used certain words commonly associated with the action of trespass and the court at one point in the trial denominated it as such, the findings appear to be based upon, and the judgment is consistent with, a tort action in negligence, which we consider it to have been. The court found that the town at the times charged failed to exercise due care in its operation and that the floodings were not caused by the contributory negligence of plaintiffs and issued judgment for damages--all without reference to the alleged nuisance or the requested injunction.
Defendant has appealed, urging that plaintiff failed to prove that the town was negligent and furthermore that plaintiffs were guilty of contributory negligence in not installing a backwater valve on a toilet which was placed at too low a level in relation to the sewer main. Counsel criticize as improperly shifting the burden of proof the finding of the trial court that the 'Flushing operations * * * were entirely under the control of the Town, and in the absence of any explanation by the Town, the court assumes that the Town failed to exercise due care * * *.' Counsel further insist that the trial court recognized plaintiffs' contributory negligence by the oral statement that and in the finding,
The evidence adduced at the trial shows that on four different occasions plaintiffs' locker plant basement was flooded with sewer water coming from the toilet and that there was a tolerance of only 1.3 feet from the bottom of the basement floor to the flow line of the main sewer under the building. At the times of these floodings the town's employees were engaged in flushing the sewer line to which the toilet was connected, and there appears to be no question as to the necessity of flushing as part of essential routine maintenance. Defendant's witnesses testified that the operation was a delicate job and bore careful watching and that the area adjacent to plaintiffs' property was hazardous. Nevertheless, according to the uncontradicted testimony, at the time of the second flooding a hose was hooked to the fire hydrant and running water into a manhole about two blocks from plaintiffs' building with no attendant in the vicinity.
As to the conditions in plaintiffs' basement, an expert witness with thirty years'...
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Brittain v. Booth, 5098
...with it assumption of risk, were absolute defenses to a negligence action. Ford Motor Company v. Arguello, supra; and Town of Douglas v. Lore, Wyo., 375 P.2d 399 (1962). The comparative negligence statute directs apportionment of fault occasioned by contributory negligence which is "not as ......
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Board of County Com'rs of Campbell County v. Ridenour
...If the burden was satisfied and contributory negligence was found, then the plaintiff was barred from any recovery. Town of Douglas v. Lore, Wyo. 1962, 375 P.2d 399, 400. This rule, originally, found throughout the nation, was frequently criticized because of the all-or-nothing harsh result......
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...Cir.). This finding and conclusion being supported by the record, recovery by plaintiff was barred under Wyoming law. Town of Douglas v. Lore, 375 P.2d 399 (Wyo.). Since we conclude that the contributory negligence ground supports the trial court's decision, the judgment is affirmed. Each p......