Opinion
No. 3974.
June 18, 1931. Rehearing Denied July 4, 1931.
Appeal from District Court, Hopkins County; Grover Sellers, Judge.
Suit by John Bailey against the Gulf Pipe Line Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
The appellee brought the suit to recover damages for the loss and injury in value to a herd of 393 cattle in pasture on land adjoining the levee along the south bank of North Sulphur river. The pasture lands, as alleged, were flooded through the breaking or giving way of a particular section of the levee at the point where the Gulf Pipe Line Company ran a pipe line in the earth beneath the base of the levee. The breaking of that particular section of the levee was occasioned, as alleged, by the negligence of the Pipe Line Company in the way and manner of tunneling in the earth, and making the excavations or passageway to run the line of pipe, and refilling and closing the excavation or passageway after laying the pipe.
The defendant answered by general denial, and specially that (1) the utmost care was used in the tunneling and in running the line of the pipe in the earth and under the base of the levee, and to shield and prevent any break or leak in the passageway in the earth and in the levee after laying the pipe, and (2) the damage or loss to the cattle was directly attributable to the plaintiff's own want of care, rather than any negligence of the defendant, in not timely moving the cattle from the pasture land before the flood, and (3) the plaintiff failed to use reasonable efforts to minimize his damages after full notice of the breaking of the levee.
In 1921, the Delta county levee improvement district No. 1 and the Hopkins county levee improvement district No. 1 jointly constructed a levee along the south bank of North Sulphur river of sufficient width and height to prevent the floodwaters of the river from overflowing the lands lying to the south and the southeast. The general direction of the levee was east and west. By the construction of the levee, the large acreage of lands adjoining were reclaimed and became valuable as pasture lands. At a time prior to the construction of the levee, the Gulf Pipe Line Company had run a line of pipe in the earth and under the channel of the river to transport oil. The general direction of the pipe line was north and south. The levee was constructed across the pipe line in the earth. At the particular section of the levee where the pipe line was run, great volumes of water was thrown against the levee embankment in freshet and flood times in the winter months, because of the necessary levying of the river in an "elbow shape." There is evidence that the levee, and the particular section of the levee where the pipe line ran, had entirely withstood and prevented the overflow of adjoining lands from the time of its construction up to the time of the particular break occurrence in suit. Thereafter, in July, 1928, under a right of way granted by the owners of the land, the Gulf Pipe Line Company ran an additional line of pipe under the earth and under the channel of the river parallel to the first line constructed. This additional line was run in the earth under the base of the levee. As shown by the evidence, an excavation or passageway was first made in the earth under the base of the levee by means of a hand-drilling machine, or, as termed, "dirt auger." The excavation was made in the following way as described by an employee of the company: "I know something about the Gulf Pipe Line Company putting in an additional pipe line across the valley land and through and across the levee in the summer of 1928. I worked on the front gang which cleared the right-of-way and bored the hole under the levee. In explanation of how that hole was bored, where it was bored, with reference to where the levee rests on the ground, what kind of hole, how big it was and what we bored with: we first dug into a portion of the levee and down about four feet deep. By a `portion of the levee' I mean that we commenced (to dig) out from the levee and then dug into the side of the levee a portion of the way. I couldn't say how far we dug into it. When we were up against the bank of the levee we dug downward something like six feet. We started boring through with a 12-inch dirt auger, using a 4-inch pipe for a stem. We didn't start boring through the levee on a level with the ground, exactly. We were running with the other pipe line. We bored entirely through the length of the levee bank, making a 12-inch hole. In that hole we placed 10-inch casing."
There is no affirmative evidence in the record showing whether the passageway or "hole" in the earth under the base of the levee was or was not filled up with dirt or other substance after the 10-inch pipe was laid. On December 10, 1928, as proven, there was a breaking of the levee at the point where the pipe line ran in the previous month of July. As testified by witness: "It looked to be that 30 or 40 feet of the levee had washed away and water was running through it. The hole in the ground was 10 or 12 feet deep, I take it. — The break in the levee was right over all three of the pipe lines. The whole works had been washed out from the lines. — The hole that washed out in the original dirt, where the pipe lines crossed, and where the break happened, in the levee showed to be about 12 feet below the natural surface, and the pipes of the pipe line were just hanging."
There was, as shown, a heavy freshet, and the waters continued to rise steadily for about forty-eight hours before the break in the levee. When the break in the levee occurred, the adjacent pasture land was flooded. Except the above stated circumstances and conditions, there was no evidence having relation to the giving way or break in the levee.
It was shown that after the leak in the levee by the pipe line occurred, the appellant with a force of men placed sacks of sand to prevent a break, and used the utmost effort to avert the break in the embankment before it occurred.
It was proven by Mr. Hicks, an experienced civil engineer, that the proper and approved method of running a pipe line is not to enter in the earth under the base of a constructed levee, but "to pass over the levee." He further stated that if a pipe line should be "put through a levee," and not in the earth under the base of it, that it was required, as a proper method of construction, to have "a concrete cover or collar of impervious material placed so as to shield and prevent seepage of water along the line of pipe."
It was proven that the appellee had leased and was pasturing about 393 cattle on the land adjoining the section of the levee which gave way. The land was of very large acreage extending several miles in length. The flood drowned about twenty head of the cattle, and caused, as was proven by appellee, injury and decreased value to the remaining cattle. There is evidence going to show that the appellee had notice of the steadily rising floodwater within the levee during the 48 hours before the break occurred, and that he made no effort to drive the cattle away from the pasture to the foothills or higher ground. The evidence of appellee goes to show that when the break occurred the high water and the condition of the ground rendered it difficult to get to the cattle to drive them out or get them upon the foothills.
The case was submitted to the jury upon special issues, as pertinent to set out:
"Do you find from a preponderance of the evidence, that the defendant, acting through its employees, in cutting and tunneling through the levee, at the time, place and in the manner they did were guilty of negligence? Answer of the Jury: `Yes.'
"Do you find from a preponderance of the evidence that such negligence was the direct and proximate cause of the levee breaking and washing out? Answer of the Jury: `Yes.'
"Do you find from a preponderance of the evidence that the defendant, acting through its employees in refilling, and closing the cut or tunnel through the levee, in the manner they did were guilty of negligence? Answer of the Jury: `Yes.'
"Do you find from a preponderance of the evidence that such negligence was the direct and proximate cause of the levee breaking and washing out? Answer of the Jury: `Yes.'
"Do you find from a preponderance of the evidence that any of plaintiff's cattle were killed or died or were injured or damaged as the direct and proximate result of the overflow of the land? Answer of the Jury: `Yes.'
"Do you find from the evidence that the plaintiff was guilty of contributory negligence in failing to remove the cattle from the overflow area? Answer of the Jury: `No.'"
The jury further found the market value of the cattle killed and injured aggregated $2,500.
In keeping with the verdict of the jury, the court entered judgment for the plaintiff for the amount of the damages as awarded by the jury.
Joe S. Brown, of Houston, McKinney Berry, of Cooper, and Emmet Thornton, of Sulphur Springs, for appellant.
J. K. Brim and Ramey Davidson, all of Sulphur Springs, for appellee.
The appellant presents the points in view, in effect, that there is no evidence going to show negligence in the manner and way (1) in which the excavation was made for the pipe line, or (2) in refilling or closing the excavation after the pipe was laid. In December, 1928, floodwaters, such as were usual, broke through a portion of the levee and flooded the adjoining pasture, inflicting loss and injury to the cattle of appellee. The break in the levee embankment was, as proven, about "30 or 40 feet" wide, and the base or earth underneath the levee was undermined, "about 12 feet below the surface." No other portion of the levee broke, and no other portion of the earth underneath was undermined, except this particular part where the pipe line was run. And it was affirmatively shown that a break in this particular section of the levee had not previously occurred during the seven years from the time of the construction of the levee in 1921, until the present time of December, 1928. The levee embankment and the base, or earth underneath it, were previous to that time in a reasonably safe and perfect condition, and held the flood-waters and prevented any overflowing of the adjacent land. As going to show that the hole in the levee causing the injury was through the fault alone of the appellant, there was offered the circumstances that in July, previous, the appellant made excavations in the earth under the levee embankment to lay an additional pipe line. An excavation was made to the depth of about six feet and the pipe laid therein. Although not shown by affirmative evidence, yet it would be presumed that after laying the pipe the excavations were refilled with dirt and the dirt tamped. No other probable cause for the break in the levee embankment and the earth underneath the embankment was made to appear, except the running of the pipe line in the earth. As is apparent, there was caused a weakening of the embankment of the levee and the earth underneath by the excavation for the laying of the additional pipe line. It is inferable that the weakening of the embankment and earth underneath was in consequence of the manner and way in which the excavation was made, or in refilling the excavation, for the physical circumstances relating to the break point forceably to that inference. Quoting from the witness who described the break: "The hole in the ground was 10 or 12 feet deep, I take it. The break in the levee was right over all three of the pipe lines. The whole works had been washed out from the lines. The hole that washed out, where the pipe line crossed, and where the break happened, in the levee showed to be about 12 feet below the natural surface, and the pipes of the pipe line were just hanging."
The break in the embankment may not be regarded as merely a breaking away of the embankment and earth, without any evidence pointing to any efficient cause for the break. It is believed the jury in all the circumstances were warranted in concluding, in point of fact, that the hole in the embankment would not have happened in the usual and ordinary course if the work of excavation and refilling had been done with reasonable care and in a protective manner. Circumstances attending the injury may, as a general rule, afford proof of negligence. 6 Thompson on Neg. (1905) § 7863; 20 R.C.L. § 163, p. 197; 45 C.J. p. 1267. In the facts, it was the duty of the appellant in running the pipe line to have taken precaution to avoid any weakening in the levee, being charged with notice, as it was, that at this section of the levee great volumes of water were thrown against the embankment in the usual freshet and flood times in the winter months because of the necessary levying of the river in an "elbow shape." As shown by the proof, there was a choice of modes of running the pipe line that would have avoided a break in the levee in flood times.
The appellant excepted to the court's definition of proximate cause and requested, and the court refused to give, a special instruction covering the correction pointed out and claimed to be error. The point made is that the definition in the court's charge omitted the element that the result must have been one which might reasonably have been foreseen. As defined in the part of the court's instruction complained of, "proximate cause is that cause, which in a natural and continuous sequence, unbroken by any new independent cause, produces an event, and but for which the same would not have happened." The definition given by the court was not an incorrect one, and neither was it inapplicable to the case. The instruction means, as the jury could have readily understood, that the act or omission which immediately causes the harmful result and without which such harmful result would not have happened, shall be deemed the proximate cause of an injury. There is no pretense in the evidence of any other cause for injury except the flood. The break in the levee let the floodwaters over and upon the adjoining pasture land. Impounded waters, as the appellant must be held to have known would come within the levee, embody perils when the embankment is weakened by excavation. Appellant could, as conclusively appears, have reasonably foreseen the harmful results in evidence.
The appellant excepted to the refusal of the court to give the requested issue, "Could the plaintiff, his agents or employees, have lessened the damages, if any, by the use of ordinary care and the expenditure of a reasonable amount of labor and time, or both?" The appellant points out that there was evidence going to show after the land became overflowed the appellee could have gone in the pasture and have driven a part of the cattle to high ground nearby, saving a portion of the cattle from being damaged. The evidence of appellee goes to show that the pasture was a large one of several miles length, and that when the break occurred the high water and the muddy condition of the ground prevented getting to the cattle, and made it difficult to drive them out or to the foothills. The court submitted to the jury the following issue: "Do you find from the evidence that the plaintiff was guilty of contributory negligence in failing to remove the cattle from the overflow area?"
This latter issue, as submitted by the court, did not limit or undertake to limit the finding of contributory negligence to doing something before the break and overflow, or after it had been seen that there was a probability of the levee breaking. It is an elementary principle that a party claiming damages must not be in fault in contributing to them by his own want of proper care. Such care must extend to the protection from further loss after the act complained of occurs. If such party fails to use such diligence, his negligence is regarded as contributing to his injury. Had the jury answered the issue "Yes," then, as the legal effect, the appellee would have been denied a recovery. It would seem, therefore, that the issue as submitted to the jury sufficiently covered the facts of the case, and that reversible error may not be predicated upon the refusal to give the requested charge.
The appellant points out under proper assignments of error that the appellee was erroneously permitted to offer evidence showing that appellant repaired and paid for the break in the levee. It is claimed that the evidence was intended to be considered as showing prior negligence. It is well settled that subsequent repairs cannot be shown for the purpose of proving prior negligence. But the appellee claims, and in that view there was no error, that the evidence was merely to show control by appellant over the excavation made under the levee at the time it was made. 45 C.J. p. 1235.
We have examined all the other assignments of error and conclude that reversible error may not be predicated thereon.
The judgment is affirmed.