# Thrasher v. Amere Gas Utilities Co.

> West Virginia Supreme Court · April 16, 1953 · 138 W. Va. 166

URL: https://www.frixlaw.com/law-library/cases/9613462

## Case

- **Full name:** Bertha S. Thrasher v. Amere Gas Utilities Company
- **Court:** West Virginia Supreme Court
- **Decided:** April 16, 1953
- **Citations:** 138 W. Va. 166; 75 S.E.2d 376
- **Precedential status:** Published
- **Opinion:** Dissent by Given
- **Judges:** Haymond, Given, Lovins
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Given, Judge,
dissenting:
As I understand the opinion of the Court, the defendant is held liable upon the theory that the negligent construction and maintenance of its pipe across Montgomery Branch was the sole proximate cause of the damages to plaintiff’s property. I believe the evidence establishes conclusively that the concrete covering con *188 structed and maintained by plaintiff over approximately 130 feet of the channel of the branch, immediately upstream from the pipe of defendant, was improperly constructed and maintained by the plaintiff, and contributed to the cause of the damages. I agree, of course, that the construction and maintenance by defendant of the pipe across the branch, in the manner detailed in the Court’s opinion, constituted negligence on the part of defendant. But was that negligence the sole proximate cause of the damages? The Court’s opinion recognizes the fact that to relieve the plaintiff of contributory negligence, any covering erected by her over the branch should have been a “proper” covering.
The Court’s opinion points out that the material facts in the case are not disputed. I agree. The down-stream end of the concrete covering was about ten feet upstream from the pipe of defendant. The covering over the branch extended for a distance of 130 feet up-stream. The fall of the bed of the branch, from the up-stream end of the covering to the down-stream end thereof, was 9.1 feet. The covering was of concrete, about ten inches thick, reinforced with steel rails, sufficiently strong to carry vehicular traffic to and from the filling station operated on plaintiff’s property. The top of the covering did not extend above, and was probably below, the level of the top of the natural banks of the stream, as shown by the photographs. The flowage capacity of the channel of the branch, as enclosed and limited by the covering constructed by plaintiff, at the up-stream end, was 109 square feet, and at the down-stream end, 50 square feet. The channel under the covering contained “several turns”.
As further establishing the improper construction of the covering by the plaintiff, and unduly limiting the capacity of the channel thereunder, it was clearly shown, and not disputed, that the channel of Montgomery Branch, above any obstruction thereof, was more than sufficient to carry, and did carry, the waters of the par *189 ticular flood alleged to have caused the damages complained of. The waters flowing down the channel at the peak of such flood were “750 to 800 cubic feet per sec-' ond”, while the capacity of the stream at the downstream end of the covering was “350 cubic feet per second”, or less than one-half of the capacity of the stream in its natural condition a short distance above the covering. Is it not certain that the limiting of the capacity of the channel at its down-stream end to less than one-half the capacity of its up-stream end, contributed to, if it did not cause, the clogging of the channel, from which the damages resulted?
From the facts detailed, I think it is definitely established that the channel of the stream under the covering, as confined and limited thereby, constituting a veritable funnel for the debris brought down the branch by the flood waters, and that because of the reduced capacity of the channel, especially at the down-stream end thereof, and possibly with the aid of the pipe of defendant, the channel was caused to become clogged with such debris, from which the damages resulted. Keeping in mind that the damages complained of occurred at the upstream end of the crossing, that the fall of the bed of the stream from that point to the pipe was more than nine feet, and that the pipe was at least three feet below the top of the natural banks of the stream, it appears certain that had the channel not been so greatly limited by the covering, no excess pressure could have resulted at the point of injury, for, in the absence of the covering, there would necessarily have had to be more than twelve feet of rise in the crest of the watér at the pipe, which would be several times more water than was in the branch at the peak of the flood. Or, to state the- conclusion another way, water or debris would have had at least twelve feet above any possible interference by the pipe to have passed down the branch, over or around the pipe, before any resulting pressure could have been created at the point where the damages occurred, and, of course, no damages could have occurred except from *190 such additional pressure. I think it is a reasonable assumption that trees, shrubbery with extended branches, and similar debris, would float with more facility and with less danger of blocking the flow of a stream, between the banks of an open stream than through a tunnel such as existed through plaintiff’s property. Admittedly, the tunnel was brought into existence by the plaintiff’s own action in constructing the cover over the open stream. In these circumstances, I can but conclude that the improper construction of the covering, limiting the capacity and the flow of the channel thereunder, as indicated, contributed to the damages suffered by plaintiff, if it was not the sole, proximate cause thereof.
Point 2 of the syllabus, of course, states a correct principal of law, but is it applicable to the facts in this1 case? Fullerton, a witness for defendant, qualified as a civil and hydraulic engineer. He testified fully as to the survey and investigation made by him, concerning the nature of the conditions existing at the place where the damages occurred, including the construction of the-concrete covering, the shape and capacity of the channel of the branch below, under and above the covering, the amount of water flowing down the branch at the peak of the flood, as to the fall of the bed of the stream above and under the covering, and as to “turns” in the channel under the covering. He also examined the quantity, and type of debris which clogged the channel and the nature of the damages resulting to plaintiff’s property. He was then asked: “From your observation, based upon your knowledge as an engineer and your experience as an engineer, I will ask you whether or not in your opinion that stoppage would have occurred in that ditch [channel under the concrete covering] notwithstanding the gas pipe which extended through the ditch in that locality?” The opinion of the Court would justify the exclusion of an answer to the question as one calling “for an opinion concerning a matter within the knowledge of men of common experience and observation as to which expert opinion evidence is not admissible.” As I view the ques *191 tion, it calls for an answer that can only be determined with any degree of accuracy by one experienced in hydraulics. Would not the answer depend very largely upon the pressure created at the point of the damages, and would not the amount of such pressure depend very largely upon the amount of water flowing down the branch and the degree of the fall of the bed of the stream? Would not the weight and construction of the concrete covering have some bearing upon such a question, as well as the amount of pressure necessary to move certain types of debris through a channel of particular size and shape? Such problems can, in my opinion, be correctly solved only by persons of special learning or experience.
I agree, of course, that refusal of the trial court to permit the witness to answer the question did not constitute reversible error, for the reason that the contemplated answer was not made part of the record.
I am authorized to say that Judge Lovins is also of the views expressed in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9613462. Public record. Not legal advice.