Wright v. Goldheim
| Decision Date | 16 November 1918 |
| Docket Number | No. 31896.,31896. |
| Citation | 169 N.W. 343,184 Iowa 1041 |
| Parties | WRIGHT ET AL. v. GOLDHEIM ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Crawford County; M. E. Hutchison, Judge.
Action at law to recover damages occasioned to plaintiffs' property by the alleged negligence of the defendants. The material facts are stated in the opinion. There was a judgment in favor of plaintiffs against the defendant Goldheim, and he appeals. Affirmed.Conner & Powers, of Denison, for appellant.
R. Shaw Van and Sims & Kuehnle, all of Denison, for appellees.
The plaintiffs are, and for a considerable period have been, the owners of a certain lot in the city of Denison, on which prior to the matters complained of they had long maintained a two-story brick building. During such period, and until the present time, the defendant Goldheim has owned the lot adjoining the plaintiffs on the south, and has maintained thereon another two-story brick store building. The wall between the buildings was upon the partition line and was owned in common. The Goldheim building was the first constructed, and the joists upon each floor of the building extended into and were supported by the party wall. The joists of the first floor of plaintiffs' building were supported upon an independent wall or foundation, but the joists of the second floor and the ceiling joists of that story were let into and rested upon the party wall. In the summer of 1915 Goldheim determined to wreck his store building and erect a new one upon the same site. When this work had so far progressed that the materials of the old building had been taken down and removed, and some degree of excavation had been done in the cellar or basement, the partition wall collapsed, causing the practical destruction of the plaintiffs' building.
In this action plaintiffs allege that the fall of the party wall, and the resulting injury to their property were caused by the act of the defendants in removing the support of such wall and undermining it, and by failing to use reasonable and proper care to perform the work in such manner as not to imperil or injure the adjoining property of the plaintiffs.
The defendant Goldheim denies that he is justly chargeable with negligence or want of reasonable care in the manner of doing the work, or that the fall of the wall was due to any fault on his part. He further pleads that the contract for removing the old building preparatory to the construction of the new one had been let by him to his codefendants, Renfro & Lewis, as independent contractors, and that he himself retained no control or direction over said contractors, who exercised their own discretion in the employment of help and in the manner in which the work was to be done or accomplished, and that for their acts or omissions, if any, he is in no manner responsible. He also alleges that the real and proximate cause of the fall and injury to plaintiffs' building was its weak, decayed, and dilapidated condition, and not in any respect or degree the failure of duty on his part.
There was a trial to a jury, resulting in a verdict for plaintiffs for $2,000, and, judgment having been rendered thereon, the defendant Goldheim appeals.
Appellant's argument for a reversal is based upon two grounds: First, that the trial court erred in overruling defendant's motion for a directed verdict at the close of all the evidence; and, second, that the trial court erred in its charge to the jury.
I. The first assignment, more specifically stated, is that the measure of defendant's responsibility or duty in the premises was reasonable care to avoid injury to plaintiffs' property, and that the evidence not only fails to show any failure or neglect on his part in this respect, but affirmatively establishes his due care as a matter of law.
[1][2] Assuming, for present purposes, that plaintiffs' right to recovery rests upon proof that the fall of the party wall and the injury to plaintiffs' property was occasioned by the negligence of the defendants in wrecking the Goldheim building, and in excavating the soil adjacent to the wall, we are quite clear that the testimony as a whole was sufficient to carry that question to the jury. Without attempting to recite the testimony of individual witnesses, it may be said that there was evidence tending to show that the taking away of the appellant's building left the party wall, 12 or 13 inches in thickness, 60 feet in length and 38 feet in height, without any support except such as inhered in the nature of its own materials and the manner of its construction, and except such as it received from its connection with the plaintiffs' building. It appears that appellant's building was the first erected, and that the party wall was a part of the original structure, and had been standing some 40 years at the time it collapsed. The ends of the joists in this building were laid in the wall to the depth of eight inches. When plaintiffs' building was subsequently erected the ends of the joists on the first floor were not let into the wall, but rested on an independent foundation, while the floor joists and ceiling joists of the second story entered the walls in holes cut therein to the depth of about four inches. Having removed appellant's building from the south side of the wall, defendants excavated the cellar or basement about three feet lower than it had theretofore been maintained, and below the foundation of the wall, leaving a berm or bench of earth which some of the witnesses describe as not exceeding two or...
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