A.H. Bowman & Co. v. Williams

• Decision Date: 18 June 1929
• Citation: 231 Ky. 433,21 S.W.2d 790
• Parties: A. H. BOWMAN & CO. v. WILLIAMS.
• Court: Kentucky Court of Appeals

21 S.W.2d 790

231 Ky. 433

A. H. BOWMAN & CO. v. WILLIAMS.

Court of Appeals of Kentucky

June 18, 1929

As Modified, on Denial of Rehearing, December 10, 1929.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Suit by Gustave A. Williams against A. H. Bowman & Co. and others. Judgment for plaintiff against defendant named, and such defendant appeals. Reversed and remanded.

Dodd &amp Dodd, of Louisville, for appellant.

Stites & Stites, of Louisville, for appellee.

LOGAN J.

On the afternoon of December 29, 1926, a fire started in the building of the Louisville Bedding Company located at 418 East Main street in the city of Louisville. The building was entirely destroyed, but the west wall was left standing. This wall was 100 feet long and 50 feet high. It was inspected by the building inspector on December 30th, and the next morning notice was sent to the Louisville Bedding Company advising that the wall was dangerous. The president of the Louisville Bedding Company immediately employed the appellant, A. H Bowman & Co., to take down the wall. The fire had not been extinguished at that time. The contract to take down the wall was made on December 31st, and on January 1, 1927, the employees of appellant began the work of taking down the wall. All admit that the wall was dangerous.

The building in which the appellee, Gustave A. Williams, resided was located at 416 East Main street, and the wall of that house was 3 feet west of the dangerous wall. That house was two stories in height, and the wall was four stories. A large beam 12 inches by 12 inches and 40 feet long was placed against the dangerous wall in front on the west side, and a similar beam was placed against the west side of the wall at the opposite end. There were three such beams against the wall bracing it, so that its falling west might be prevented. These braces were placed against the wall by the appellant when it commenced work on the 1st day of January. As greater security long planks were placed perpendicularly against the west side of the dangerous wall and the beams rested against the planks. Other planks were placed horizontally against the walls and secured by ropes passed through the windows in the wall. After the ropes were passed through the windows and around or over the wall, they were anchored on the east side. These precautions were taken in an effort to prevent the falling of the wall towards the west while the work of taking it down was in progress. It was not possible to place braces against the west side of the wall between the house in which appellee resided and the dangerous wall, because the building to the west was not sufficiently stable and the resting of braces against it might have resulted in its being crushed.

Two of the employees of appellant scaled the wall and made some effort to remove the bricks. It was intention of appellant to take the wall down brick by brick. These employees found the tools with which they were working unsatisfactory; they also discovered that the wall was weaving; and they hurried down, reaching the ground a moment before the wall fell.

A few minutes before the falling of the wall, appellee had gone into the rooms occupied by him in the second story of the building immediately to the west. The house was wrecked by the falling of the wall, appellee was seriously injured, and his property in the house destroyed.

Appellee instituted suit against the Louisville Bedding Company and the appellant seeking to recover damages for the personal injuries to himself and the destruction of his property, basing his action on the ground that they had negligently failed to protect him and his property from the falling of the wall. The answer denied negligence and relied on contributory negligence. At the conclusion of all of the evidence the trial court instructed the jury to return a verdict in favor of the Louisville Bedding Company, and submitted the case to the jury as to appellant. The jury found against appellee on his claim for personal injuries, but returned a verdict for $1,400 for the destruction of his furniture and furnishings. It is obvious that the jury found against appellee on his claim for personal injuries because of his contributory negligence. He has no cross-appeal, and he has not appealed from the judgment in favor of the Louisville Bedding Company. The only question before us, or that can now be considered, is whether appellant is responsible for the destruction of his property, and whether the trial was free from errors.

It is an elementary principle of law that a man may do what he will with his own, but this right must be subordinated to another expressed in the familiar maxim, "sic utere tuo ut alienum non lædas.' DDD' Camfield v. U. S., 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260. As was held in that case, a landowner's rights will not justify his maintaining a nuisance or in carrying on a business or trade that is offensive or dangerous to his neighbors; that a man has no right to maintain a structure upon his own land which renders the occupancy of adjoining property dangerous. No person who maintains such a nuisance can shelter himself behind the sanctity of private property. Ordinarily the existence of a nuisance fixes the liability without proof of negligence on the part of the one maintaining it. When the degree of danger is obvious and so extreme as to invite calamity, a nuisance per se exists. Melker v. New York, 190 N.Y. 481, 83 N.E. 565, 16 L. R. A. (N. S.) 621, 13 Ann. Cas. 544.

It is proper for a person to make a rightful use of his property as long as that use does not interfere materially with the rights of others. But conditions may be so changed that a structure rightly used and existing on the property of the owner may become a nuisance. In the instant case the erection and maintenance of the wall in connection with the building of the Louisville Bedding Company was a legitimate use, but the fire, through its ravages, converted the wall into a nuisance, and the Louisville Bedding Company had thrust upon it immediately all of the responsibilities and liabilities of an owner who allows a nuisance on his property. It immediately became the duty of the Louisville Bedding Company, when its building was destroyed by fire, upon notice of the condition of things, to use all reasonable precautions to protect appellee from danger of the falling wall. The principles governing liability for damages from falling walls have been well stated by Judge Thompson in volume 1, § 1055, of his work on Negligence, where he says: "The liability of the owner of buildings for damages caused by the falling of their walls may arise in three different relations: 1. Where the damage happens to a traveler on the adjoining street or side walk; here the governing principle is that the wall of a building abutting a public highway which is so unsafe that it is liable to fall upon the highway, injuring persons lawfully there, is a public nuisance. Such being the case, the extent to which the question of the negligence or diligence of the proprietor in inspecting and supporting the wall and preventing the catastrophe comes into play is more doubtful than other relations. 2. Where the damage happens to a coterminous landowner; here the governing principle is that, while the proprietor whose wall is allowed to become unsafe is not an insurer in respect of its safety, yet he is bound to exercise reasonable care and skill to the end of inspecting it with the view of ascertaining whether or not it is dangerous, and to the end of repairing it if it is found to be so. 3. Where the injury received from the falling of the wall is visited upon some third person while upon the grounds of the proprietor whose wall it is; in this relation the principles already considered govern."

In the case of Ainsworth v. Lakin, 180 Mass. 397, 62 N.E 746, 57 L. R. A. 132, 91 Am. St. Rep. 314, it was held that the owner of walls left standing after a fire owes adjoining owners the duty, after a reasonable time for investigation, of exercising such care in the maintenance of walls likely to fall on their property, as will absolutely prevent injury except from causes over which he would have no control, such as vis major, acts of public enemies, or acts of third persons which human foresight could not reasonably be expected to...