Broadhurst v. Blythe Bros. Co.
| Decision Date | 10 December 1941 |
| Docket Number | 680. |
| Parties | BROADHURST et al. v. BLYTHE BROS. CO. at al. |
| Court | North Carolina Supreme Court |
See also, 217 N.C. 585, 8 S.E.2d 926.
This was an action to recover damages for an injury to plaintiffs' building in the City of High Point, alleged to have been caused by the negligence of the defendants Blythe Brothers Co., A. H. Guion & Co., the City of High Point and the Southern Railway Co., incident to excavations adjoining plaintiffs' property made for the purpose of constructing a railroad underpass and an overhead concrete bridge in the city.
The facts alleged in the complaint were substantially these: The City of High Point and the North Carolina State Highway and Public Works Commission, in cooperation with the Southern Railway Company, had entered into an agreement for the elimination of grade crossings in the City by lowering the grade of the tracks of the Railway Company. At the point where Main Street (one of the principal thorough fares of the city and a State Highway) crosses the railroad the grade of the railroad was to be lowered some 28 feet, and over this cut a concrete bridge was to be constructed as a part of Main Street to carry the traffic of that street and the State Highway. The general direction of Main Street is North and South. The plaintiffs' property, a two-story brick building, was located on the Northwest corner of Main and Broad Streets, fronting 27 feet on Main Street and extending Westward along Broad Street 100 feet. Broad Street intersected Main Street at right angles, and its southern line adjoined and paralleled the railroad right of way. In carrying out the agreement as to the crossing at Main Street, the City of High Point undertook to do the excavating necessary for lowering the tracks, and contracted with defendant Blythe Bros. Co. to do this work. The State Highway Commission employed A. H. Guion & Co. to construct a permanent concrete bridge and to erect the retaining walls along the sides of the excavation. The north bank of the cut west of Main Street, was immediately south of Broad Street, and across this last named street stood plaintiffs' building. At the time Guion & Co. began the work for which it had contracted with the Highway Commission, in 1938, Blythe Bros. Co. had practically completed the excavation. Under the surface of Broad Street the City of High Point had laid a 24-inch water main and this connected with a 12-inch main at the intersection of this Street with Main Street. North of plaintiffs' building the entire block was covered by business buildings, constituting enormous pressure on the land. The type of soil revealed by the cut as underlying Broad Street and plaintiffs' building was red clay for one and a half feet, underneath which was a stratum of water bearing sand. Notice of the nature of the soil was given defendant Guion & Co. and its attention was called to the surrounding conditions. In beginning its work of erecting the bridge defendant Guion & Co. took no steps to relieve the pressure on the north bank of the cut just south of plaintiffs' building, while heavy piling was driven in the cut in the line of Main Street at a point near plaintiffs' property The pile driver, weighing 52,000 pounds, together with hoisting machinery, was placed on the asphalt surface of Broad Street, just over the junction of the water mains, and the effect of the driving was such as to jar the soil under Broad Street and plaintiffs' building. In August, 1938, this caused the unjointing of the water mains, and as a result the water poured through the subsoil into the cut, carrying a slide or cave-in of earth and loosening the foundation of the street and building. Broad Street was blocked off by defendant Guion & Co., and the surface water thereon was diverted and caused to flow into the cut. In November, 1938, due to diverted water, augmented by heavy rainfall, loosening the underlying stratum, a heavy land slide and cave-in from the north bank into the cut occurred, carrying away a part of the street and several sections of the 24-inch water main. As a consequence plaintiffs' building was caused to settle and crack, the entire south wall was caused to move laterally several inches, and the plaintiffs' building became unsafe and unfit for use, so much so that the building was rendered practically worthless, and it became necessary to have it torn down.
The pertinent allegations of negligence imputed to the defendants were that no shoring or bracing was done to prevent slides or cave-ins along the north side of the deep cut, and that after the slide of August, 1938, nothing was done to repair or prevent further slides, although the defendants knew or should have known of the danger to plaintiffs' building; that defendants knew the type of soil involved and took no precautions to prevent slides; that the pile driving was done without due precaution to prevent injury. The allegations applicable to the City of High Point were that the City failed to inspect, repair and relocate its water mains, failed to repair cracks which appeared in the pavement of Broad Street, and failed to take precautions to protect plaintiffs' property.
The defendants, severally, denied the allegations of negligence and denied that plaintiffs' injury proximately resulted therefrom. The City of High Point denied liability for any injury to plaintiffs' property on the further ground that in authorizing the lowering of the grade of the railroad track and the construction of the bridge, it was acting in its governmental capacity in the public interest; and that the construction of the bridge was done by Guion & Co. under contract and supervision of the State Highway Commission, and that the City was not liable for injury resulting from the negligence of the contractor.
At the conclusion of plaintiffs' evidence motion for judgment of nonsuit as to defendant Southern Railway Co. was allowed. No exception was preserved as to this ruling.
Both defendants Guion & Co. and City of High Point demurred ore tenus on the ground that plaintiffs' exclusive remedy was under sec. 3846(bb), Michie's Code, and that the injury complained of occurred while work was being carried on by agents and servants of the State Highway Commission. Both defendants also in apt time moved for judgments of nonsuit. Both demurrers were overruled and the motions for nonsuit denied, and defendants Guion & Co. and the City of High Point excepted.
The following issues were submitted to the jury and answered as follows:
The court set aside the verdict as to Blythe Bros. & Co. on the ground that this defendant was entitled to peremptory instructions in its favor. No exception was preserved to this ruling. Plaintiffs' motion to set aside the verdict on the fifth issue was denied. Judgment on the verdict as to defendant Guion & Co. and the City of High Point was signed, and plaintiffs excepted and appealed on the issue of damages. Defendants Guion & Co. and City of High Point appealed, assigning as error the court's overruling their demurrers and motions for nonsuit.
Lovelace & Kirkman, of High Point, for plaintiffs.
Frazier & Frazier, of Greensboro, for defendant A. H. Guion & Co.
Grover H. Jones, of High Point, for defendant City of High Point.
Plaintiffs' Appeal.
Plaintiffs' appeal involves only the rulings of the court relating to the issue of damages. They excepted to the admission of certain evidence as to the repair of the damaged building, and also to the charge of the court on this point, and to the refusal of the court to state their contentions in the form requested. An examination of the record, however, leads us to the conclusion that the evidence, to which objection was noted, for the purpose for which the court in the charge limited it, was competent. Plaintiffs' contentions were substantially stated in the general charge, and we find no error in the instructions given, which would warrant a new trial.
The court gave the jury the correct rule for the admeasurement of damages--the difference between the market value of the property before and after the injury--and was careful to instruct them that evidence as to the practicability of repairing the plaintiffs' building, instead of removing it entirely, was for the purpose of aiding the jury in determining the reasonableness of the opinion expressed by the witnesses as to the market value of the property and the difference in market value before and after the injury. Farrall v. Universal Garage Co., 179 N.C. 389, 102 S.E. 617; West Construction Co. v. Atlantic Coast Line R Co....
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