Jacoby v. City of Gillette , 62 Wyo. 487 ( 1946 )

OPINION ON REHEARING A Petition for rehearing has been filed by appellants in these cases insisting that it was wrong for this court to adopt the view that no negligence on the part of the City had been established and that we ignored the duty resting upon the municipality "to inspect and maintain the ditch in a condition to carry off the water that might reasonably be anticipated to run through it." In these contentions we think appellants are mistaken. This court has said that: "Negligence consists of a violation of duty owing by one to another". Hines vs. Sweeney on Petition for Rehearing, 28 Wyo. 82, 89, 201 P. 1018. The Supreme Court of the United States in the case of the Baltimore P.R. Co. vs. Jones, 95 U.S. 439, 24 L. Ed. 506, remarked that:

"Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission."

The duty imposed by law upon the City was not more than to so maintain that part of the Burlington Ditch which it had purchased as to meet all demands upon its capacity for carrying the water therein which could reasonably be expected to arise. The proofs in the record are such that the trial court could and did find that it had sufficiently performed that duty. It was under no obligation to anticipate such a flood of water pouring down the canal in question as had never before in the thirty-five years of its existence appeared. The most unusual and catastrophic nature of the flood of January 22, 1943 led one of the witnesses for the City who had lived in that vicinity for many years to state that he had never seen the water in the ditch as high as it was that night and also — to use his own words — "I never seen a flood like that in my life". In the original opinion herein it was pointed out that the expert witnesses on behalf of both parties agreed that more water came into this ditch when the phenomenal thaw occurred in consequence of the chinook wind than it was designed to carry. As we understand the record the failure or non-failure of the City to inspect the ditch had nothing to do with the unprecedented natural force which actually produced the damage in suit.

Complaint is made that the City did not keep "the banks" of the ditch "level". It will be recalled that the water where it overflowed was but three to four inches deep at the lowest part of the ditch according to the plaintiffs' expert witness, Butler, and the width of this low place was less than twenty feet. But if these banks had been exactly level with no low places at all, this witness told counsel for appellants on his direct examination:

"Q. Now, if the top of this bank, at the point ``A', and continuing along past the point ``B' had been level, instead of having these lower places in them, would the water have spilled over as it did, as you saw it?

"A. Well, it wouldn't have done it as quick."

And on cross examination the same witness in response to practically the same question reiterated that statement in substantially these words: "Well, it wouldn't have run over at the same time it did". That is to say it would have done so later. This testimony was followed by another statement of Mr. Butler to this effect:

"No, I don't think it (the ditch at the low place) would have held it (the water)".

Additionally the Street Commissioner of the City who had examined the ditch before the flood in question testified:

"Q. Did you notice that there was a low spot at the alley between Kendirck and Carey Avenues?

"A. Well, something like that is hard to tell with a naked eye.

"Q. Did you notice that?

"A. I couldn't say I did, because there is ups and downs all along that ditch.

"Q. It didn't occur to you that was too low a spot, where the water might spill out?

"A. No, sir."

It would appear decidedly harsh to hold the City negligent in not keeping this bank level when neither the Street Commissioner nor plaintiffs' expert witness Butler prior to the peak of the flood could see that the bank of the ditch was insufficient to hold the water. It evidently required surveyor's instruments to determine just how far from being exactly level the bank was. But aside from this fact entirely, it is evident that even if it had been level, the ditch would have overflowed there anyway. In other words the unprecedented flood waters were the direct cause of all the trouble, i.e., they were an "act of God" in the legal sense of that term, as the trial court concluded.

It is also urged that the record shows without dispute "that the bottom of the ditch raised .95 of a foot in its downward course". It would seem that the testimony to which appellants evidently refer is that of their expert witness, Butler, who took his measurements and platted a "longitudinal vertical cross section of this canal" February 20, 1944, nearly a year after the flood in question occurred. When asked whether the conditions of the ditch at the time he took the measurements were the same as they were when the flood took place on January 22, 1943, he responded "well, of course I couldn't say the bottom of the ditch was exactly the same"; that "he had observed no change between January 22, 1943 and February 20, 1944"; and that "the conditions were approximately the same". It will be noted that no time of day is specified relative to January 22, 1943 in the query or the several answers above mentioned and it will be remembered that during a substantial part of the day of the flood, the ditch bottom was under water. However, assuming the witness referred to that part of the day when the ditch bottom was more or less clear of water, the condition thereof was stated to be only anapproximate estimate. As against this testimony there is the evidence of the expert witness for the City, Jesse E. Spielman, who said, as indicated in the original opinion, that the ten inches rise in the bottom of the ditch was not the condition of the ditch when the flood took place and explained how the bottom of the ditch had been elevated by the action of the flood waters themselves. Upon this conflict in testimony, the trial court could reasonably conclude that at the time the flood came down the ditch, its bottom was not appreciably raised. Indeed, Mr. Butler himself said that late in the afternoon of January 22, 1943 he saw nothing which should cause alarm that the ditch would not properly function. We are, of course, bound by the trial court's findings upon disputed questions of fact where there is, as in this case, substantial evidence to support them and where the trial judge himself inspected the premises.

Much of the argument in the brief in support of the petition for rehearing could very well have been addressed to the trial court when the case was before it for disposition, but arrives too late here. We realize that counsel feel they should perform their full duty on behalf of their clients in presenting this matter and that we think they have done. We are obliged, however, to conclude that the views expressed and the result reached in the original opinion should stand and that the petition for a rehearing should accordingly be denied.

Denied.

KIMBALL, J. and TIDBALL, Dist. Judge, concur.