Campbell v. Lunsford

• Decision Date: 13 January 1888
• Citation: 3 So. 522,83 Ala. 512
• Parties: CAMPBELL v. LUNSFORD.
• Court: Alabama Supreme Court

3 So. 522

83 Ala. 512

CAMPBELL v. LUNSFORD.

Supreme Court of Alabama

January 13, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by W. H. Campbell against George Lunsford, to recover damages for personal injuries, caused by the falling of a brick wall. Judgment in favor of defendant, and plaintiff appeals.

G R. Harsh and Wetherly & Putnam, for appellant.

W C. Ward, for appellee.

CLOPTON J.

The issues of fact were tried by the court without the intervention of a jury, as provided by the act establishing the city court of Birmingham. The conclusions and judgment of the court on the evidence being presented for review, we are required to review them without any presumption in favor of the ruling of the court. If, on the entire evidence, the plaintiff cannot recover under either count of the amended complaint, the ruling on the demurrer to the fourth count, if erroneous, is error without injury. The action is brought by appellant to recover for personal injuries produced by the falling of a brick wall. For the purpose of obtaining a broader and firmer foundation for a building which the defendant was having erected on his own premises by contracts, it was deemed necessary to undermine a rear wall on the adjacent lot. In order to support the wall during the process of undermining pieces of timber, denominated needles, were extended through it, intended to rest upon firm earth on both sides. They were tightly keyed, and supported to posts. The negligence as alleged, and as the proof tends to show, consists in the failure to extend them through sufficiently to enable them to rest on solid ground on the inside of the wall. The necessity for this work was not discovered until after the original contracts were made, and was not included therein. It was extra work, and the mode for supporting the walls, while being undermined, was directed by the architect, who was employed to superintend the erection of the building. The architect was not an independent contractor, beyond the control of the defendant as to the manner of doing the work. It is shown that he had the ultimate power, as owner, to order how it should be done. Having reserved and possessing this power, the defendant is liable, notwithstanding the mode was left to the judgment and direction of the architect, for injuries caused by the negligent performance of the work, the other essentials to create a liability to the particular person injured being established.

The defendant is not responsible to the plaintiff, unless there was the neglect of duty owed to him,-unless, as between him and the defendant, there was a want of due care. The lot is the private property of the defendant, and the building was in process of construction. It was not a business house, nor a place where the public are expected or impliedly invited or induced to come for the transaction of business or for other purposes. To trespassers or idlers, or persons visiting the premises merely for their individual benefit, or from curiosity, the defendant owed no duty other than that no willful nor wanton injury should be done. To create a duty to the plaintiff, he must have sustained a relation to the business or to the defendant equivalent to an invitation or inducement to come on the lot. The duty to keep the structure free from defect likely to produce injury only extends to persons sustaining such relation. Railway Co. v. Thompson, 77 Ala. 448; Pierce v Whitcomb, 21 Amer. Rep. 120; Beach, Neg. 17. The duty to ...