Opinion
No. 36535.
Filed July 21, 1967.
1. Waters: Damages. A jury might reasonably infer that defendant's dumping sand in the Platte River substantially contributed to a subsequent ice jam against a sandbar downstream, a levee failure upstream, and flood damage to plaintiffs' property. 2. ___: ___. The damages in this case are excessive, appearing to have been given under the influence of prejudice.
Appeal from the district court for Douglas County: JOHN E. MURPHY, Judge. Affirmed in part, and in part reversed and remanded.
Gross, Welch, Vinardi, Kauffman Schatz, for appellant.
Lathrop Albracht, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
A levee failed, and escaping waters of the Platte River flooded part of plaintiffs' farm north-northwest of Valley, Nebraska. In this negligence action a jury has assessed damages for the harm to plaintiffs. Defendant contends on appeal that causation between his conduct and the levee failure was not reasonably inferable and that excessive damages were awarded.
The river flowed southerly in two channels along the west side of defendant's land and less than 3/4 mile west of plaintiffs' farm. The east channel, studded with sandbars and small islands, was 500 to 600 feet wide. It ordinarily carried 75 or 80 percent of the stream-flow, which had a sediment bearing load and a tendency toward deposition of sediment.
The levee ran along the left bank of the river for 10 miles. Maintenance was a function of the Union Dike and Drainage District, which had built the structure in 1918. The embankment had a 50-foot base, 2 to 1 or 3 to 1 slope, and 10-foot top used for vehicular travel. It was composed of light soil excavated from parallel borrow pits. One of the adjoining pits was located 1/2 mile north of a point west of plaintiffs' farm. In that pit water stood 16 feet deep. The levee failed there at an early hour on March 25, 1962.
Defendant, doing business as Nebraska Aggregate Company, had begun production of aggregate from his land in July 1961. The relevant activity took place 1/2 mile south of the site of the levee failure. During the next several months production was sizable. In an around-the-clock operation employees daily filled 50 railroad cars with aggregate, which amounted to 70 percent of the raw material. The remainder, fine sand, was discharged through a pipe across the levee and into the east channel. The men used a bulldozer to move the accumulation westward. The dump, 20 to 25 feet high with a taper, finally occupied between 17 and 85 percent of the channel width in estimates by witnesses. Repeated protests, public and private, had been ignored.
After several days of thaw and on the day before the flood, ice restricted the hydraulic effectiveness of the east channel. A sheet remained at the Leshara bridge, a mile south of the dump. The flow there was relatively minute with no water backed up as late as evening. At the dump site a conservation officer, while walking north 100 yards on the levee, observed a different condition. The water in a day had receded 6 inches to a level 3 1/2 feet below the levee top, but a large ice jam existed in the area. In photographs of the flood the upstream end of the ice jam is located a short distance north of the dump site. Other observations were made in the afternoon and evening by Harry Green, president of the drainage district. He was unaware of any sand boil, although railroad employees were sandbagging the levee top upstream 6 miles. Referring indefinitely to the area of the Nebraska Aggregate Company, Green testified:
"A. It was blocked by an ice jam at this area, and it had been raising for some little time and was getting quite high. Q. Where was the ice jam * * *? A. Well, it was lodged from approximately the sandbar on south or downstream for quite some distance. Q. And could that ice get through there? A. No. * * * It was lodged on the hump in the sand."
Defendant's manager witnessed the levee failure. For several days ice cakes on high water had eaten away at the levee, which was full of trees and brush. His men had checked several sand boils. Although they attacked another one with sandbags and a bulldozer, they could not defend the levee. Removal of foundation material had created a channel under the embankment, which collapsed. Through the wide breach water rushed southeasterly in a 3-foot current across plaintiffs' land. On the third day of the flood a construction company closed the breach.
Plaintiffs' farm had been flooded one other time during the years 1952 to 1962. In 1960 the levee upstream 6 miles failed because of abnormal runoff. Parts of the Burlington railroad tracks and U.S. Highway No. 275 were washed out. In 1962 the runoff was normal, and detailed information concerning any dangerous condition north of the breach was not shown.
Plaintiffs' theory of factual causation has several elements. The waste sand increased the sediment bearing load of the stream, and the increase contributed substantially to formation of sandbars downstream. Ice cakes lodging against one of the bars created the jam, which raised the water level upstream. Through the pipeline of the sand boil foundation material was removed by hydrostatic pressure, and the levee collapsed. In our opinion the evidence was sufficient to support a reasonable inference that defendant's conduct caused plaintiffs' harm.
Defendant argues that assessment of excessive damages is demonstrated by plaintiffs' petition and testimony of plaintiff Jack F. Paulson. The petition itemized damage of $13,720, the amount of the claim, as follows: (1) Leveling, $1,500; (2) planing, $300; (3) plowing, $200; (4) fencing, $1,200; (5) debris, $200; (6) shelled corn, $220; (7) access road, $600; (8) top soil, $5,500; and (9) unplanted crops for 1962, $4,000. Paulson, a Bachelor of Science in Agriculture and a licensed real estate broker, engaged in farm management. He testified to items (1) through (6) with a total estimate of $3,626, which included $250 for shelled corn. He also valued the farm, 80 acres, before the flood at $48,000 and after the flood at "400, 450 dollars an acre. * * * $32,000 to $36,000." No other evidence of amount as an equivalent to adequate compensation appears in the record.
The district court instructed the jury on damages measured by the value of the shelled corn and by depreciation in the value of the land. Plain language removed the danger of duplication in a recovery. The jury assessed damages at $16,000, which responded to the upper limit of the totals, $12,250 and $16,250, in the substance of Paulson's testimony.
Significant are the considerable range of post-injury valuations by Paulson in the same breath, the lack of other evidence, the interest of Paulson, and the itemization in the petition. In the state of the record damages are excessive, appearing to have been given under the influence of prejudice. The issue of responsibility, however, should not be tried again. See, Caster v. Moeller, 176 Neb. 30, 125 N.W.2d 89, rehearing denied, 176 Neb. 446, 126 N.W.2d 485; Scofield v. Haskell, 180 Neb. 324, 142 N.W.2d 597.
The judgment is affirmed in part and in part reversed, and the cause is remanded for a new trial on damage issues alone. Costs on appeal are taxed against plaintiffs.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED.