Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CITY OF NEW ALBANY, MS v. CHARLES E. BARKLEY

AUGUST 05, 1987

CITY OF NEW ALBANY, MS
v.
CHARLES E. BARKLEY



BEFORE ROY NOBLE LEE, P.J., AND ROBERTSON AND ANDERSON, JJ.

ANDERSON, JUSTICE, FOR THE COURT:

This case comes to us from the Circuit Court of Union County wherein we are called upon to decide whether flood damages to appellee's property during an unprecedented rainfall (seven inches in seven hours) were proximately caused by blockage of a 30-inch wide culvert located more than one-half mile from the property. We do not believe the evidence supports the verdict, even though it was sufficient to withstand a judgment notwithstanding the verdict. Therefore, we reverse and remand for a new trial.

On May 18, 1983, during extremely heavy rainfall, the motorcycle business of appellee, Charles Barkley, located on Bankhead Street in New Albany, flooded to a depth of approximately 28 to 30 inches. Other properties in this area and other areas of the city flooded also.

 Troy Palmer, official keeper of records of rainfall in New Albany for the U. S. Weather Bureau, testified that the rain on the day in question was extraordinary. Approximately 7.32 inches of rain fell between 7 a.m. May 18 and 7 a.m. May 19. Most of the rain fell between the hours of 7 p.m. and 2 a.m., averaging about an inch an hour for seven hours.

 Appellee discovered several days after the flood that a culvert located just over one-half mile from his property was almost completely blocked and alleges that this caused the water to be diverted onto his property.

 Appellee contends that this property had not flooded before or after May 18, despite other heavy rainfall. However, there was substantial testimony - though contradicted by appellee and his wife - that neither prior nor subsequent rains were equivalent to that of May 18.

 Appellee filed a complaint against the city alleging that his business was flooded and materially damaged due to the negligence of the city's agents, officers, and employees in maintaining the culvert. He sought damages for cleanup expenses, lost profits and loss or damages to real and personal property.

 Appellee offered evidence that the culvert was blocked and that the city should have known it. The most damaging evidence against the city on this question was statements made by the street commissioner to the effect that he was aware of a problem with the culvert and that its cleaning helped to prevent subsequent flooding.

 Another witness for the appellee, a retired flood control worker with the Soil Conservation Service, testified that it would take at least a year to accumulate the amount of silt and vegetation buildup found in the culvert.

 Although the city maintains that the culvert was regularly cleaned, it cannot and does not deny the blockage during the flood. In fact, city workers removed a 30-gallon drum, a five-gallon can, a cross-tie and three or four feet of silt from the culvert after the flood.

 I.

 Having established unequivocally that the culvert was blocked, we now question whether or not the blockage of this 30-inch culvert located more than one-half mile from appellee's property caused the waters to enter his building.

 The rule regarding proximate cause is set forth in Barkley v. Miller Transporters, Inc., 450 So. 2d 416 (Miss. 1984);

 Under Mississippi law, negligence is not sufficient to permit recovery for injury. The injury must have been the direct result of the alleged negligence. Pargas of Taylorsville, Inc. v. Craft, 249 So. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.