Scanlan v. San Francisco & San Joaquin Railway (1900) · DecisionDepot

Scanlan v. San Francisco & San Joaquin Railway

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 14, 1900 No. Sac. No. 393.Published

Before: THE COURT.

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Holding. The court held that the trial court's reliance on the expert testimony regarding the embankment's volume was justified, that the exclusion of unverified field notes was proper, and that a new trial was not warranted because the defendant failed to move for a continuance to secure the witness.

Issues

Whether the trial court erred in accepting the expert's method of measuring the embankment's volume.
Whether the trial court erred in excluding field notes that lacked testimony regarding their correctness.
Whether the trial court erred in denying a new trial based on evidence that was known to the defendant prior to the trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In view of this evidence we think the court was justified in accepting the computation of plaintiff’s engineer.”

“There was no competent evidence of their correctness given, and it was not error to exclude them.”

“Knowing of the importance of his testimony, defendant should have moved for a continuance, and, failing to do so, it must he held that it entered upon the trial at its peril.”

Synopsis

The facts are stated in the opinion of the court.

THE COURT.

This is an action brought by a contractor for the construction of a railway embankment, to recover the contract price for the alleged cubic contents of the embankment. The defendant had paid to the plaintiff what it claimed to be the whole amount earned, except about twenty dollars which it brought into court. The plaintiff had judgment for the balance claimed by him, and the defendant appeals.

The contract, among other things, contained the following provisions:

“On embankments a percentage for shrinkage must be added to the fill, and said percentage will be specified and marked out by the engineer (of, the company), but will in no case exceed ten per cent of height of bank.”

“Material will be measured in embankment, but no measurement will be made of the material added for shrinkage, nor payment made for same.”

It is conceded by appellant that there is no conflicting testimony, but it is insisted that the evidence does not sustain the findings of the court. Plaintiff called as a witness an engineer by the name of Compton, whose qualifications as an expert were not questioned. He made measurements of the embankment three months after its completion, and when, as he testified, it was well settled. He found the cubical contents to be fifty-three thousand one hundred and thirteen jmrds. This was the amount in gross, making no deduction for material added for shrinkage. The witness Gorlinsky, a civil engineer, called for the defendant, testified that he placed the grade stakes to show the contractors how high to build the bank, and in setting the grade stakes allowed five per cent on the fill for shrinkage. “That is, I made the grade five per cent higher than what it was established at, allowing for settlement, and that earth was put in.” The court accepted the measurement of the cubical contents testified to by Compton, and, deducting from the fifty-three thousand one hundred and thirteen cubic yards five per.

[588]

cent for shrinkage and settlement, found that plaintiff was entitled to payment for fifty thousand five hundred and ninety-one cubic yards, an error of eight yards from the true calculation, which would he fifty thousand five hundred and eightvthree cubic yards.

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The principal attack made upon the finding is that the evidence of Compton was not sufficient as a basis for estimating the amount of material in the embankment, and it is insisted that the prismoidal formula is the only one which will give accurate results in the measurement of embankments such as this. Plaintiffs witness, measuring as he did after the embankment had been constructed, did not know the original condition of the ground, and did not employ this formula, but he testified that the method which he employed was sufficiently accurate for practical purposes, and testified that it would he a false refinement to employ the prismoidal formula. He described the method which he actually used, and testified to its correctness, and to the correctness of the result reached thereby. In addition to this, appellant’s counsel conceded that the method which Mr. Compton employed was “ordinary and not unprofessional,” insisting merely that there was a closer and more accurate method; while Mr. Storey, the chief engineer of defendant, testified that the method employed by Compton was known as the approximate method, “it was used by some engineers under a claim that the difference between the correct way of doing-it and this way is not sufficient to involve enough to pay for making the extra calculation.” In view of this evidence we think the court was justified in accepting the computation of plaintiff’s engineer. Hor can appellant justly insist that the finding of the court fixing the amount of earth placed in the embankment at fifty thousand five hundred and ninety-one cubic yards was unwarranted. As has been said, the court deducted five per cent from Compton’s estimate for settlement and shrinkage, notwithstanding the fact that there was abundant testimony showing that at the time Compton made his measurements the work was well settled, and there is no question in the case but that the embankment was constructed in a workmanlike manner, and accepted by defendant’s engineers.

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Synopsis

THE COURT.

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