Zeno's Bakery, Inc. v. State

• Decision Date: 02 May 1933
• Citation: 166 A. 379,105 Vt. 370
• Parties: ZENO'S BAKERY, INC. v. STATE
• Court: Vermont Supreme Court

166 A. 379

105 Vt. 370

ZENO'S BAKERY, INC. v. STATE

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Highways---Insufficiency of Evidence To Show That Accident Happened on Culvert or Its Approach---Defense of "Act of God"---Duty of State as to Keeping Culverts on State Highways in Repair---Acts 1931, No. 61, 5---What Constitutes Sufficient Culvert---Insufficiency of Evidence To Show Culvert Defective---Inadequate Briefing---Evidence Held To Show Damages Occasioned by "Act of God."

1. In

ACTION OF TORT against State, under Acts 1931, No. 61, 5, to recover for damages to plaintiff's truck based on alleged insufficiency and want of repair of culvert on State highway held that, evidence being insufficient to show that accident happened on culvert or approach thereto, verdict should have been directed for defendant.

2. To constitute defense to action as an "act of God," damage suffered by plaintiff must have been proximately due directly and ex-

clusively, to natural causes without human intervention, which could not have been prevented by any amount of foresight, pains and care, reasonably to be expected.

3. Under Acts 1931, No. 61, 5, State has duty to keep culverts on State highways in reasonably safe condition with reference to such accidents as might be expected to happen thereon such duty, as affecting State's liability to pay damages occasioned by defects in culverts, is not measured by exercise of ordinary care and diligence, neither is it liable as insurer, but as statute imposes duty of keeping culverts in good and sufficient repair, if State is chargeable with any fault in respect of this duty liability attaches.

4. Generally, if culvert is constructed so that it does not obstruct normal flow of stream and ordinary high water through it, no liability attaches for damages caused by unforeseen and extraordinary freshets.

5. In action of tort against State, under Acts 1931, No. 61, 5, to recover for damages to plaintiff's truck, based on alleged insufficiency and want of repair of culvert on State highway, held that evidence failed to show that culvert was not sufficient to pass stream at its normal flow and in ordinary high water.

6. Briefing, which on certain point referrred to entire testimony of two witnesses, covering 44 pages of transcript held inadequate and not in accordance with requirements of Supreme Court rule 8.

7. Questions inadequately briefed will not be considered by Supreme Court.

8. In action of tort against State, under Acts 1931, No. 61, 5, to recover for damages to plaintiff's truck, based on alleged insufficiency and want of repair of culvert on State highway, whereby plaintiff's truck went into washout caused by storm of extraordinary and unusual violence, evidence held to show that sole and proximate cause of damage suffered by plaintiff was "act of God."

ACTION OF TORT against State under Acts 1931, No. 61, /n 5, to recover for injuries to truck through alleged insufficiency and want of repair of culvert on State highway. Plea, general denial. Trial by jury at the September Term, 1932, Windham County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover its costs.

Lawrence C. Jones, Attorney General, for the State.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

This is an action brought under the provisions of section 5 of No. 61, Acts of 1931, to recover for damage to plaintiff's truck caused by the alleged insufficiency and want of repair of a culvert on the highway from Bellows Falls to Chester. This highway was taken over by the State, pursuant to the provisions of such act, on April 13, 1931. By the provisions of section 5, the State is made liable for injuries sustained upon a highway taken over by it to the same extent that a town is liable under the provisions of G. L. 4615, 4617, and 4618. There was a trial by jury and a verdict and judgment for the plaintiff.

The culvert is a stone box with the walls laid dry. It is covered with flagstones except at each end where there is a cement slab. There was a head wall at each end attached to the cement slab. The opening through the culvert is four feet, three inches wide, five feet, six inches in height at its westerly end, and six feet at its easterly end. The brook that passes through it flows from the west towards the east. At the time of the washout, hereinafter mentioned, the width of the highway, including its shoulders, over the culvert was about twenty-one feet, nineteen feet of which was covered with tarvia. The surface of the road over the westerly end of the culvert was about eleven feet above the bed of the stream and over its easterly end about twelve feet, six inches. The highway over the culvert and for about ninety feet southerly of it was nearly level; then it began to rise at a 6 per cent. grade. The highway northerly of the culvert is on a rising grade.

The highway over the culvert, and on both sides of it for a considerable distance, had been raised from time to time by a fill composed of gravel, stone, loam, and some sand. The surface of the fill was four or five feet above the top of the culvert. On the westerly side of the fill, both north and south of the culvert, and extending some distance from it, there was riprap of an irregular height that operated, in part, as a retaining wall.

The stream that passes through the culvert has a watershed of about fifteen hundred acres westerly of the highway, from which there is a quick run-off. For about eight hundred feet westerly of the culvert the land is rather flat. Above that the stream flows in a narrow, rocky channel through a deep, heavily wooded gorge. The location of the intake of the culvert to the channel of the stream is such that in any period of high water when the stream rises above the channel that it runs in at low or normal water, the trend and velocity of the stream is such that it strikes the bank of the fill northerly of the culvert, then turns and flows southerly past the culvert against the bank of the fill southerly thereof, where it is deflected so that it flows westerly to some extent before it enters the culvert. This tends to produce eddies so that drift wood and debris collected by the stream do not readily pass into the culvert, but are thrown around and across its intake with a tendency to obstruct it.

There was a heavy rain in Rockingham in the general locality of the culvert in the night of July 9, 1931, that lasted until sometime in the early hours of July 10. The stream was raised to flood magnitude and the intake of the culvert was choked by material carried down by it so that only a small quantity of water passed through the culvert. The water set back from the culvert, formed a large pond, and rose nearly to the surface of the highway. By reason thereof, between twelve o'clock, midnight, and one o'clock, A. M., July 10, the traveled portion of the highway directly over the culvert and southerly of it was washed out for a distance of from twenty-five to forty-five feet, and to a depth of from about five feet at the north end of the washout to about twelve feet at its south end. The culvert was not damaged except that the westerly head wall was broken off.

At about one o'clock, A.M., July 10, the plaintiff's truck went into the washout at its south end, and was so badly damaged that it was practically worthless.

The defendant moved for a directed verdict at the close of the evidence. The motion was overruled, and it excepted.

The first six grounds of the motion are so related to the principal questions raised by the defendant that we consider them together. Their substance is that the plaintiff has not shown any shortage of legal duty on the part of the defendant; that there is no evidence that the culvert was insufficient and out of repair; that the damage suffered by the plaintiff was primarily due directly and exclusively to natural causes without human intervention, which could not have been prevented by any amount of foresight, pains, and care reasonably to be expected, and the resulting damage was an act of God.

The substance of the allegations in plaintiff's complaint is that the culvert was not of sufficient size to properly receive and discharge the waters of the brook; that it was constructed of stones loosely placed so that the water could and did work around and through the fill, "or approaches"; that "the approaches" of the culvert were made of sand, dirt, and gravel which were not of sufficient strength and texture to prevent washing away; that the culvert and "approaches thereto" were so constructed that the water was compelled to enter the culvert at a sharp angle, which impeded and retarded the flow of water, debris, and flood wood through it; that the culvert was not clear of debris and flood wood and it thereby became clogged and prevented the waters of the brook from passing through it; that by reason thereof the waters of the brook set back and formed a pond that rose to such a height that it caused the waters thereof to overflow the culvert and "approaches thereto," and to wash out the highway, as hereinbefore stated.

The defendant contends that no part of the highway southerly of the culvert was an "approach" to it within the meaning of the statute as construed by this Court, but was the highway itself; and therefore it is not liable in this action.

It appears from the uncontradicted evidence that the culvert was constructed forty years ago; that the fill over, and on each side of, it has not been replaced during that time, but it has been raised; and that the location of the highway has not been...