Ulrick v. Dakota Loan & Trust Co.

• Decision Date: 05 April 1892
• Citation: 3 S.D. 44,51 N.W. 1023
• Parties: E.H. ULRICK, Plaintiff, v. DAKOTA LOAN & TRUST CO. Defendant.
• Court: South Dakota Supreme Court

3 S.D. 44

51 N.W. 1023

E.H. ULRICK, Plaintiff, v. DAKOTA LOAN & TRUST CO.

Defendant.

South Dakota Supreme Court

Appeal from District Court, Codington County, SD

Hon. J. O. Andrews, Judge

Opinion adhered to.

Glass & Van Buskirk

Attorneys for appellant.

Seward & Stover

Attorneys for Plaintiffs/respondents.

Van Buskirk & Weeden, for appellant.

Opinion filed April 5, 1892

(See 2 SD 285, 49 NW 1054)

KELLAM, P. J.

This case was decided at the October term, 1891, of this court, and is reported in Ulrick v. Dakota Loan & Trust Co.,(1891). Appellant asks for a rehearing for the purpose of urging upon the attention of the court that, if any negligence whatever was shown on the part of appellant, it was not such negligence as was complained of in the complaint, nor such as would make appellant liable for ensuing damages; and, further, that an incorrect measure of damages was adopted by the trial court, and approved by this court. We will examine the complaint and the evidence only far enough to see if the court has fallen into the errors suggested. The complaint is that “defendant (appellant) wrongfully and negligently … excavated the land adjacent and contiguous to plaintiff’s said land, … and removed the earth therefrom, without leaving sufficient lateral support for the plaintiff’s said land and building; … that defendant did so make such excavation as aforesaid, without using proper and ordinary care and skill in so doing, and without taking reasonable precaution to sustain the plaintiff’s said land and building; that by reason of the excavation made as aforesaid, and the lack of support to plaintiff’s said land and building caused thereby, the stone walls under said building sank and gave way,” etc. The evidence most directly tending to show negligence, if any, and that upon which the verdict undoubtedly rested, was that after the excavation was substantially done, but still open, awaiting the masons, with trenches for the footing courses of appellant’s wall, dug along and by the side of respondent’s wall, it was left in such condition that water ran in from the street outside, and so soaked up and softened the earth by which respondent’s wall was supported that it settled, and gave way, causing the damage complained of. In our former opinion we meant to be understood as holding that in the excavation of this work appellant owed a duty to respondent as a coterminous owner; that ghat duty extended not only to the digging up of the earth and hauling it away, but to the care of the excavation during the progress of the work. Whether so leaving the excavation open to the influx of water was such negligence as would make appellant liable, depends upon circumstances. The circumstances were left to the jury under an instruction which we think fairly stated the law. They were told that while appellant could not, in general, be held liable for injury caused by an unusual and excessive rain, yet if the rain itself would not have run into the, excavation in sufficient quantity to cause damage, except for the careless and negligent conduct of appellant in leaving the same exposed to the gathered inflow of water from the street and gutter, appellant might be liable. We think this was correct law. Suth. Dam. pp. 20-28; Pittsburgh City v. Grier, 22 Pa. St. 54; Higgins v. Dewey, 107 Mass. 494.

It is further suggested that the court below erred in allowing the plaintiff to testify that no notice, either oral or in writing, was given him by defendant of its intention to excavate, for the reason that it appeared that plaintiff was fully informed of such intention, and consequently no notice was necessary. In the assignment of errors we do not find this complained of, but if error, and properly assigned, it would not be important, as the court expressly instructed the jury, that if from the evidence, they should find that plaintiff knew that such excavation was to be made, no further notice was necessary. The petition for rehearing also urges that both this court and the trial court erred in adopting an incorrect measure of damages, to-wit, the difference in the value of the property immediately before and immediately after the injury, instead of the correct measure, to-wit, the amount required to restore the property to its former condition. The cases cited in the petition do not convince us that we were wrong. We will notice them. In Vermilya v. Railway Co., 66 Iowa 606, 24 N.W. 234, plaintiff’s meadow had been destroyed by fire set out...