Larson v. Metropolitan St. Ry. Co.

• Decision Date: 09 May 1892
• Citation: 110 Mo. 234,19 S.W. 416
• Parties: LARSON v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

19 S.W. 416

110 Mo. 234

LARSON v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri.

May 9, 1892.

ADJOINING LANDOWNERS — EXCAVATIONS — RELATION OF MASTER AND SERVANT — INDEPENDENT CONTRACTORS.

1. A company which contracts for an excavation for the foundation of a building, to be made as the company's engineer should direct, any one refusing to obey his orders to be discharged by the contractor, is liable for damages to adjoining property, resulting from the negligent manner in which the excavation is made.

2. A person who is told by an adjoining landowner that a proposed excavation for a building would be made in the usual manner by removing the dirt "in sections," and walling up one section before another was opened, is entitled to rely upon such representations, at least until a reasonable opportunity has been given him to take measures for the protection of his building; and where, after one section has been built substantially as promised, the removal in sections is abandoned, and the dirt is all taken out at once, thereby occasioning the fall of the said building only a few hours afterwards, it cannot be said as a matter of law that such opportunity was given.

3. The fact that the removal of earth in sections for the foundation of a building involves some additional expense, and lessens in some slight degree the strength of the foundation wall, but not to such an extent as to impair its utility, does not excuse the failure to remove the earth in this manner, where it is necessary for the safety of an adjoining building.

SHERWOOD, C.J., and GANTT, J., dissenting.

In banc. Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by John Larson against the Metropolitan Street Railway Company 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.

Gage, Ladd & Small, for appellant. Pratt, Ferry & Hagerman, for respondent.

BARCLAY, J.

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, Mo. 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 2 inches from the eastern boundary of defendant's property, and extended from the street line some 72 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 125 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 5 feet wide and from 7 to 11 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 72 or 73 feet. The foundation of the latter was at a depth of 11 feet from the natural surface. They then began at the street line, and carried the trench to a further depth of about 2 feet (a total depth of about 13 feet) for a distance of 25 or 30 feet from the street. The concrete and footing stone of defendant's foundation wall were then laid in the 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 24 to 26 inches (to correspond with the level of the first section) along the entire building line opposite plaintiff's house, a stretch of 40 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 2 o'clock, and was finished about half past 5 o'clock of the same afternoon. That night, about 10 o'clock, a large part of plaintiff's building slipped into the excavation, on account, as it 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 26 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 deposits. There was abundant evidence of experienced builders and civil engineers that the customary way of removing such soil for foundations adjacent to and below that of other buildings is to take out the earth in sections of 10 to 16 feet, each, in length, and to substitute the new foundation in each section before opening the next one; that any other mode of doing such work is likely to result as in the present case; but that building in sections involves an expense from 18 to 30 per cent. greater than the cost of proceeding without subdividing the work in that manner. On these facts the trial court declared that plaintiff had no cause of action, and he has appealed against that ruling.

1. Before reaching the main issue, it will be well to dispose of a subordinate one, touching the responsible connection between defendant and the digging force, to whose acts the consequences complained of are ascribed. The defendant claims that those acts were done, in effect, by a contractor independent of its control, and that it is not liable on account thereof. It is now an accepted rule that supervision of such work may be retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivisions of it; but in the case at bar the contract under which the work was done goes much further. It declares that "the excavation shall be carried to such general depth as may be indicated by the engineer. Excavations for the trenches and piers will be made as required from time to time in the progress of the work, and to such an extent as may be indicated by the engineer." Along with this language are statements that the engineer was "in charge of the work," and that men who refused or neglected to obey his orders were to be discharged by the contractors. Now, the very act complained of here is the digging of the trench too long and too deep in the circumstances. That act is charged as negligence. It was ordered by defendant's representative on the spot, acting for the chief engineer, who had express power to direct "by his authorized agents" as well as personally. The work was done precisely as ordered. Thus it was the exercise of the discretion or judgment vested in the supervising authority which caused the catastrophe and for that exercise of judgment defendant must respond. Lancaster v. Insurance Co., (1887,) 92 Mo. 460, 5 S. W. Rep. 23; Bower v. Peate, (1876,) 1 Q. B. Div. 321.

2. The chief question in the case is to determine what duty towards plaintiff rested upon defendant in view of the facts. Very much has been written upon the right of lateral support and its limitations under the English law. It will not be necessary to restate the general principles governing that right. They were discussed very lucidly here, years ago, in Charless v. Rankin, (1856,) 22 Mo. 573, which remains a leading case on that subject. For present purposes it will suffice to say it is settled law that the unquestionable right of a landowner to remove the earth from his own premises, adjacent to another's building, is subject to the qualification that he shall use ordinary care to cause no unnecessary damage to his neighbor's property in so doing. We need not inquire how such a principle became ingrafted upon a system which traces its origin to the English common law; but that it is there, is evidenced by abundant decisions, of which a few leaders, besides that above cited, may be mentioned: Foley v. Wyeth, (1861,) 2 Allen, 131...