108 S.W.2d 663 | Ky. Ct. App. | 1937
Reversing.
H. H. Miller Construction Company appeals from a $900 judgment for injury to real estate alleged to have been caused by the diversion of water resulting from the construction of a highway.
Appellee owns about one and one-half acres of land in Harlan county on the south bank of Poor Fork river. The State Highway Department contracted with appellant to construct the highway on the north bank of the river. Appellant sublet the work to Gilliam Cooper. Opposite appellee's land was a ledge of rock about 30 feet high. In order to construct the highway it was necessary to remove the rock. According to the evidence for appellee, many tons of rock blasted from the bluff were thrown into the river beyond the right of way line, and the natural flow of the river was so obstructed that a new channel was formed and a considerable portion of appellee's land was washed away and destroyed.
Damages were sought both against appellant, the contractor, and Harlan county. The county went out on a peremptory, and appellee not having appealed or prosecuted a cross appeal, the propriety of the court's action is not before us for review. In addition to a general denial, appellant pleaded in substance that it sublet the contract to Gilliam Cooper, who were independent contractors
One of the grounds urged for reversal is that the court should have held as a matter of law that Gilliam Cooper were independent contractors, and have awarded appellant a peremptory instruction. Appellee insists that the doctrine of independent contractor does not apply to a case arising under section 242 of the Constitution. But it must not be overlooked that we are not dealing with the liability of the county, but only with the liability of the contractor. The law governing the liability of the contractor in a case of this kind may be summarized as follows: A contractor constructing a highway without negligence under the plans of the *672
Highway Commission is not liable for damages resulting from the obstruction of the stream on the right of way, but he is liable for negligence in the performance of the contract or without negligence where the material blasted in the work of construction is cast beyond the right of way. Combs v. Codell Const. Co.,
The foregoing conclusion makes it apparent that appellee is not entitled to have her motion to affirm as a delay case sustained.
Judgment reversed, and cause remanded for a new trial consistent with this opinion.