Larson v. The Metropolitan Street Railway Company
| Decision Date | 09 May 1892 |
| Citation | 19 S.W. 416,110 Mo. 234 |
| Parties | Larson, Appellant, v. The Metropolitan Street Railway Company |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Turner A. Gill, Judge.
Action for damages alleged to have occurred by the negligent removal of lateral support to plaintiff's building, in consequence of which the latter fell. The trial court instructed the jury that plaintiff could not recover, upon which he took a nonsuit with leave, etc. The plaintiff appealed in due form.
The other facts appear in the opinion.
Reversed and remanded.
Gage Ladd & Small for appellant.
(1) A proprietor who makes excavations in his own land, near the premises of his neighbor, in a careless and negligent manner is liable in damages for injuries to the building of the adjoining owner, which were the consequence of his carelessness and negligence in the work of excavation. Charless v. Rankin, 22 Mo. 566; Stevenson v Wallace, 27 Gratt. 89; Moody v. McClelland, 39 Ala. 52; Myer v. Hobbs, 57 Ala. 177; Shafer v. Wilson, 44 Md. 269; Austin v. Railroad, 25 N.Y. 334; Quincy v. Jones, 76 Ill. 231; McMillan v. Staples, 36 Iowa 532; Dodd v. Holme, 1 Ad. & Ell. 493; Foley v. Wyeth, 2 Allen, 131; Washburn on Easements [4 Ed.] top p. 582, et seq., side p. 430 et seq., Thompson on Negligence, 276; Cooley on Torts [2 Ed.] top p. 707, side p. 595; Wood on Nuisances [2 Ed.] secs. 189, 190. (2) That the work of excavation was carelessly and negligently done, and that the injury to the building was the result, was clearly established by the evidence. (3) Although work has been let to a contractor, this fact will not exonerate a party for whom the work is performed from liability for the negligent acts of the contractor, or his servants, if the right to control or direct the mode or manner of the work in any respect is retained, or if such control be in fact exercised, or such direction assumed. Speed v. Railroad, 71 Mo. 303; Railroad v. Hanning, 15 Wall. 657; Heffernan v. Benkard, 1 Robertson (N. Y.) 432; Schwartz v. Gilmore, 45 Ill. 457; Faren v. Sellers, 39 La. Ann. 1011; Brophy v. Bartlett, 15 N.E. (N. Y.) 368; Jones v. Chantry, 4 N.Y.S. (Thompson & Cook) 61; Wharton on Negligence, sec. 181.
Pratt, Ferry & Hagerman for respondent.
(1) The owner of land is not, in the absence of negligence as to the manner of the excavation, liable for an injury to a structure upon adjoining land, if such excavation would not have caused the adjoining soil in its natural state to fall. Charless v. Rankin, 22 Mo. 466; Ward v. Andrews, 3 Mo.App. 275. (2) Upon the record in this case it must be said that the soil in its natural state would not have fallen, and, if there was negligence in the manner of excavating, there was no liability. First. The undisputed evidence shows that the soil in its natural state would not have fallen. Second. The cause of action is for negligence in the mode of excavating; under such a charge there could be no recovery for an interference with the support of the soil, even though the proof warranted it. Ward v. Andrews, 3 Mo.App. 275. (3) There was no evidence tending to show negligence. First. The falling of the building raises no presumption of negligence. Ward v. Andrews, 3 Mo.App. 275; 1 Thompson on Negligence, 276-7. Second. In the absence of a duty there can be no negligence. Ward v. Fagin, 14 S.W. 738. Third. It may well be doubted if the charge in the petition would warrant a recovery on the ground that the excavation should have been done in sections and walled up before further excavating, and the work so continued. Waldhier v. Railroad, 71 Mo. 514; Reed v. Bott, 100 Mo. 62. Fourth. The excavator is, at most, only required to give notice of his intention, so that the adjoining proprietor may have an opportunity to protect himself. 2 Shearman & Redfield on Negligence [4 Ed.] 701; 1 Thompson on Negligence, 276-278; Washburn on Easements [4 Ed.] 444; Lasala v. Holbrook, 4 Paige Ch. 169; Shafer v. Wilson, 44 Md. 269; Charless v. Rankin, 22 Mo. 566. Fifth. The duty of protecting his own building or having the work done in sections falls upon the adjoining proprietor. Authorities last cited, supra; Peyton v. London, 9 Barn. & Cress. 275; Walters v. Pfiel, 1 Moody & Walk. 362; Massey v. Gryder, 4 Car. & P. 161. Sixth. Plaintiff had full knowledge, and negligence cannot be predicated upon failure to give notice. Charless v. Rankin, 22 Mo. 566. (4) The work was done under an independent contractor, and any negligence in the manner of doing the work cannot be charged against defendant. The power of selecting servants, which is the foundation of respondeat superior, was lacking. According to the terms of the contract, there is no liability, and the cases upon similar contracts fully sustain this contention. Barry v. St. Louis, 17 Mo. 121; Clark v. Railroad, 36 Mo. 202; Dillon v. Hunt, 82 Mo. 150; Blumb v. Kansas City, 84 Mo. 112; McKinley v. Railroad, 40 Mo.App. 449; Blake v. Ferris, 1 Seld. 48; Kelly v. Railroad, 11 N.Y. 433; Slater v. Mersereau, 64 N.Y. 138, 144.
OPINION
In Banc.
Plaintiff's case is for damages occasioned by the fall of a building, occupied by him as lessee of the Ackerson estate, in Kansas City, Missouri.
The gist of his petition is that "the defendant wrongfully, carelessly and negligently dug out and carried away the soil, immediately adjoining, and under the west wall of, said building, by means of which * * * the said west wall was made to fall, * * * thereby destroying and damaging the property of plaintiff therein contained * * * to the extent of $ 3,000."
The answer is a general denial.
The circuit court forced plaintiff to a nonsuit by giving an instruction in the nature of a demurrer to the evidence. It is, therefore, proper to outline the facts upon which plaintiff relies as constituting his cause of action. In so doing, he is entitled to the benefit of the most favorable view of his case that the evidence warrants, and of every reasonable inference therefrom. So viewed the substance of his case is this:
The plaintiff's building was a two-story brick, in which he carried on business. It stood two inches from the eastern boundary of defendant's property, and extended from the street line some seventy-two feet southward.
The excavation to which the damage is ascribed was made upon defendant's lot close along that boundary line. This line ran at a right angle to Ninth street on which plaintiff's house fronted; both the lots reached southward from the street, one-hundred-and twenty-five feet, to an alley.
The defendant proposed erecting an engine-house on its lot; and, in prosecuting that purpose, contracted in writing with a firm for the necessary excavating and masonry for the foundations.
Some of the terms of that contract will be mentioned later.
The contractors sublet the excavating to another, who began its performance, having a foreman there in charge of a number of workmen and teams.
The defendant's chief engineer occasionally visited the work, but the actual superintendence, under the first contract mentioned, was mainly exercised by Mr. Butts, the engineer's assistant, who remained on the ground. The foreman of the digging party testified that the subcontractor placed him under the orders of Mr. Butts, and that the work was accordingly done as the latter directed.
About the time the excavating began, plaintiff had an interview with Mr. Butts in which he asked, "if he thought it was not dangerous to be taking dirt away" (namely from "alongside of the wall"), to which Mr. Butts replied that "there was not going to be any injury to the building; of course he was going to take it out in sections, and wall it up as they went along." Plaintiff says that that "kind of satisfied" him. The house fell about a week later. Plaintiff observed the work meanwhile.
A trench, some five feet wide, and from seven to eleven feet deep, was first dug, near defendant's east boundary line, from the street to a point about opposite the south end of plaintiff's building, some seventy-two or three feet. The foundation of the latter was at a depth of eleven feet from the natural surface. They then began at the street line and carried the trench to a further depth of about two feet (a total depth of about thirteen feet) for a distance of twenty-five or thirty feet from the street.
The concrete and footing stone of defendant's foundation wall were then laid in that space or section. Three days later, according to the testimony of the foreman of the excavators, Mr. Butts directed him to "take out the remainder of the ditch," and he proceeded to do so, excavating to the additional depth of twenty-four to twenty-six inches (to correspond with the level of the first section), along the entire building line opposite plaintiff's house, a stretch of forty odd feet from the end of the first section. Mr. Butts was present while this work was being done. The job was begun at half past two o'clock and was finished about half past five o'clock of the same afternoon. That night about ten o'clock a large part of plaintiff's building slipped into the excavation, on account (as is claimed) of that removal of its lateral support; but that portion of the house which faced the masonry work of the first section of defendant's foundation (for a distance of twenty-six feet from the street front) remained in place.
The soil of the locality is that of the Missouri river bottom, a mixture of sand and loam, formed by alluvial deposit.
There was abundant evidence of experienced builders and civil engineers that the customary way of removing such soil for foundations, adjacent to and below...
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