Canfield Rubber Co. v. Leary & Co.

• Decision Date: 01 June 1923
• Citation: 99 Conn. 40,121 A. 283
• Parties: CANFIELD RUBBER CO. v. LEARY & CO.
• Court: Connecticut Supreme Court

121 A. 283

99 Conn. 40

CANFIELD RUBBER CO. v. LEARY & CO.

Supreme Court of Errors of Connecticut.

June 1, 1923

Appeal from Superior Court, Fairfield County; John W. Banks, Judge.

Action by the Canfield Rubber Company against Leary & Co. Judgment for plaintiff, and defendant appeals. No error.

The complaint alleges a cause of action based on the negligence of the defendant contractor in excavating, maintaining, and filling in a sewer ditch in front of the plaintiff's factory building, whereby the lateral support of the plaintiff's soil was removed and its building damaged. The defendant answered alleging that the injuries, if any were due to the improper construction of the plaintiff's building or to improper specifications provided by the city of Bridgeport for the construction of the sewer and denying negligence. The city of Bridgeport was cited in as a defendant, but on motion for a separation of issues for trial this action against the contractor was ordered to be first tried. On the trial the plaintiff claimed to have proved the following facts: That its building was in good condition and free from structural defects; that the defendant, under a contract with the city of Bridgeport, constructed a sewer in Railroad avenue in front of the plaintiff's factory building, about 11 feet in width and 22 feet deep, some 5 feet distant from the front wall thereof; that the sides of the trench were supported by sheeting, but the sheeting was no constructed, and the soil of such a character, that fine sand flowed into the trench and under and through the sheeting; that in order to keep the trench free from water the defendant operated a pump whose suction end was below the level for laying pipe, and drew up large quantities of such sand; that the defendant negligently failed to block off an old sewer so as to prevent it from discharging surface water into the trench; and that as the result of these and other acts of the defendant the soil under the foundations of the plaintiff's building was removed and the building settled and was injured. The specific negligent acts which the plaintiff offered evidence to prove include the following: That the defendant knew or should have known that the construction of the sewer by the means intended to be used by them would endanger the plaintiff's building but gave no notice or warning of such danger to the plaintiff; that reasonable care in the performance of the work required other and more efficient protection of the sides and bottom of the trench, than was used by the defendant, and required the defendant to use a method of pumping which would not remove large quantities of sand in the bottom of the ditch, and required that the defendant should not have kept open at any time more than 25 feet of trench excavated to the depth in front of the plaintiff's building, while in fact it kept open about 50 feet of trench excavated to depth. The plaintiff also claimed to have proved that the settlement of the soil under the foundations of its building was not due to the weight of the building, and was due to the defendant's failure to support the plaintiff's soil in its natural state without the weight of the plaintiff's building upon it.

The defendant claimed to have proved that the construction of the sewer and the excavation of the trench in all respects identical in depth and other dimensions with that in front of plaintiff's building was commenced at a considerable distance from the plaintiff's premises and gradually approached them as the work progressed; that the plaintiff's officers had actual notice of the character of the work and of the methods employed by the defendant in ample time to have protected their building, but failed to do so; that the defendant performed the work with due care and in such a manner as to support the plaintiff's land in its natural state; and that the plaintiff's building settled and was damaged by its own weight or before the defendant excavated in front of it.

The jury returned a verdict for the plaintiff and answered the following special interrogatory:

" Was the sheeting and timbering of the defendant's trench at all times sufficient to support the plaintiff's soil in its natural state without the weight of plaintiff's building upon it?" Answer: " No."

A motion to set aside the verdict as against the evidence was denied. Defendant appeals from the refusal of the court to set aside the verdict and assigns errors in the charge of the court and in its rulings on evidence.

Carl Foster nad Sanford Stoddard, both of Bridgeport, for appellant.

William H. Comley and John M. Comley, both of Bridgeport, for appellee.

BEACH J. (after stating the facts as above).

Taking first the ruling on the motion to set aside the verdict as against the evidence: It is not denied that there was legally sufficient evidence of one or more of the specifications of negligence alleged in the complaint. The motion was based, as appears from the memorandum of decision on the motion and from the appellant's brief, on two claims of law, which also underlie other assignments of error, as to the legal duty of the defendant in conducting excavations in the highway, and as to the legal duty of the plaintiff to protect its own buildings, after having had timely notice--actual or imputed--of the character of the excavations and the manner of conducting the work.

These claims are stated substantially as follows: (a) That because no burden rested on the defendant to maintain the plaintiff's buildings upon the plaintiff's land, it could not be held for injury to them except it were guilty of negligence directly injuring the plaintiff's buildings, as by hammering, pulling, pushing, blasting, or the like; (b) that it was plaintiff's duty to protect its own buildings, and if, having timely notice of probable danger of injury from the withdrawal of lateral support by the proposed excavation, it failed to protect the same, it was guilty of contributory negligence.

As to the facts, the defendant's claim is that there was no evidence of any acts by it directly injuring the plaintiff's building, and that there was undisputed evidence of timely notice and of the plaintiff's failure to take any steps to protect its building.

The authorities do not support the defendant's claims of law above stated. Referring first to our own decisions: Trowbridge v. True, 52 Conn. 190, 52 Am.Rep. 579, deals only with the settled rule that the owner of land has a right to the lateral support of his soil in its natural state, and holds that to that extent the right to lateral support is an incident to the ownership of land. It also holds that the obligation of the adjoining owner to furnish that measure of lateral support is satisfied by providing adequate artificial support in place of the soil removed. Ceffarelli v. Landino, 82 Conn. 126, 72 A. 564, lays down the equally familiar rule that at common law this right to lateral support does not extend to buildings, saying:

" But if there are buildings upon the neighbor's land, and these increase the lateral pressure, and if the giving way is due to this added burden, the person excavating is not liable, in the absence of negligence in conducting the work, for the damage so resulting to the owner."

In Barnes v. Waterbury, 82 Conn. 518, 74 A. 902, a retaining wall was undermined in the construction of a sewer alongside of the plaintiff's lot, and, as the plaintiff alleged and claimed, by the negligence of the city of Waterbury in executing the work. The jury found for the defendant, but in discussing the charge of the court we quoted the above excerpt from Ceffarelli v. Landino, and added:

" In the present case the natural right of support existed in respect of the lands only and not of the retaining wall thereon. The parties, however, making an excavation in the passway were bound to use reasonable care in the prosecution of the work, and would be liable for injury to the plaintiff's property resulting from negligence."

In Huber v. Douglass, Inc., 94 Conn. 167, 108 A. 727, there was a verdict against contractors for damages for the collapse of plaintiff's building alleged to have been caused by the defendant's negligence in carrying out the work of demolishing an adjoining building and excavating for the foundation of a new one. The court charged the jury in accordance with the rule last quoted from Barnes v. Waterbury. We held the charge correct, and said of the defendant's criticism of that rule:

" In the stress which the defendant lays upon its own claimed immunity under a too narrow interpretation of the law of lateral support, it seems to practically overlook the equally important correlative rule which still holds one in its position to the strict exercise of reasonable care. This ‘ is not based upon any right of property in adjacent land for support of buildings or otherwise. It is simply a restraint upon reckless and unnecessary conduct in respect to the use of such adjacent property, fraught with danger to the building. Its justification is found in a well-established principle, having wide application in English and American jurisprudence, and its application to cases of this kind is as well settled as the doctrine that the owner of a building has no right of support therefor in the land of an adjacent owner. The two propositions are asserted, side by side, in the same decisions, and in practically all of them.’ Walker v Strosnider, 67 W.Va. 39, 46, 67 S.E. 1087."

The excerpts in the last three cases were deliberate rulings in each case upon the charge of the court, and they are supported by the overwhelming weight of authority. See the note to Hannicker v. Lepper, 20 S.D. 371, 104 N.W 202, 6 L.R.A. (N. S.) 243 (129 Am.St.Rep. 938), where...