Serio v. Murphy

Fowler, J., delivered the opinion of the Court. The plaintiff below, and appellant in this appeal, brought an action to recover damages caused by the injury of a wall of the house he was occupying as a dwelling. The facts briefly stated are that the plaintiff was a tenant of Dr. Wilbur P. Morgan of the premises known as No. 323 Clay street, Baltimore City, under a written lease which contained a covenant that he was to make all repairs. This he concedes. Frank J. Murphy is the owner of lots 320 and 322 on the north side of West Lexington street. These lots run back to and also front on Clay street, and adjoin the premises of the plaintiff on the west. Mr. Murphy employed Henry S. Rippel to erect a warehouse on his lot and sent a notice to Dr. Morgan, the owner of the premises occupied by the plaintiff, of his intention to excavate and requesting him to protect the west wall of his house. While this work was in progress according to plaintiff’s witnesses the wall was cracked and badly injured, and the plaintiff was compelled to move out. He has brought this suit against Dr. Morgan, his landlord, .Henry S. Rippel, the builder, and Frank J. Murphy, the owner, of the lot about to be improved. At the close of the plaintiff’s case the jury were instructed that he had offered no evidence legally sufficient to justify a verdict against either of the defendants, Morgan or Rippel. There was accordingly a verdict and judgment the.reon in their favor and the case proceeded against the remaining defendant Frank J. Murphy. At the close of the testimony offered by the defendant, Murphy, the plaintiff offered one and the defendant five *555 prayers. The plaintiff’s prayer was refused and those of the defendant were granted. These rulings, together with the granting of the prayers of the other defendants taking the case from the jury as to them constitute the only exception presented by this appeal. It is impossible to read the record without coming to the conclusion at once that the trial Court committed no error when at the close of the plaintiff’s case the jury were told that no testimony had been offered by the plaintiff legally sufficient to entitle him to recover as against Morgan and Rippel. The former, as we have seen, was the plaintiff’s landlord, but as such he was not only under no obligation to repair but that duty rested upon the plaintiff himself. The evidence shows, if it shows anything clearly and sufficiently, that while the excavation was being made upon the premises of the defendant, Murphy, the wall was cracked and badly injured. There is an utter failure, so far as the plaintiff’s testimony is concerned, to connect Dr. Morgan with this work. There is no proof offered by the plaintiff that he was guilty of any negligence or that he failed in any duty imposed on him by law. The notice to the effect that the wall in question as well as a floor joist had been condemned was sent to Dr. Morgan on the 29th April — long after the injury for which this suit was brought had happened — and, therefore, it affords no evidence whatever that Morgan was made acquainted with the bad condition of the wall before it cracked. But, as we have seen, under the lease it was the duty of the tenant to make repairs if any were necessary. Again, under the provisions -of the City Code offered in evidence by the plaintiff even if there was any evidence that Dr. Morgan failed to comply with the notice to protect his wall, it was the duty of the Building Inspector of Baltimore City to do the work at Dr. Morgan’s expense before the proposed excavation was made on the adjoining lot. In point of fact, however, it was developed in the further progress of the case that the wall was injured while the underpinning was in progress and before the excavation was commenced for the building about to be erected on Murphy’s lot. *556 Without prolonging this opinion by a rehearsal of the plaintiff’s testimony it is enough to say that there is no sufficient proof by the plaintiff that Rippel did the work of excavation or that it was done under his supervision or control. But if we assume there was legally sufficient proof of this fact, there is no evidence that he was guilty of such gross negligence as would make him liable under the settled rule applicable to cases like this. . In the first place negligence cannot be presumed because the -wall cracked or fell. I Thompson on Negligence, 277. And that seems to be the situation before us in this case. Nor is the highest degree of care required. If the owner of the building endangered by the proposed excavation has received proper notice, the party making the excavation is. responsible only for actual or positive negligence in the manner of doing the work and is not required to use the same care that a prudent man would.exercise in similar circumstances. Jones on Easements, sec. 614. Or in. other words, as we have said fin Shafer v. Wilson, 44 Md. 280, the work of excavating must be done with reasonable and ordinary care. There was only one witness of the plaintiff who gave any testimony in regard to the manner in which the work was done, and even he, did not see it done, but he appears to be of opinion that he being a very prudent man himself, he would not have ventured to underpin in this case without resorting to some other and further pi'ecautions. But he fails to give any facts to show actual and positive negligence, and when asked the direct question whether he considered it careless to underpin that building fi-om the outside, he replied, that in thirty years experience he had had much worse buildings to contend with and never had a mishap, because he always took precautions to guard against it. He did not examine the inside of the house. But assuming that thei-e may have been some slight circumstances testified to by this witness which would have warranted the Court in submitting to the jury the question whether Rippel was guilty of negligence, still the granting of this prayer worked no injury to the plaintiff — for this *557 very question, namely, whether Rippel exercised due and ordinary care was submitted to the jury in the instructions given at the instance of the defendant Murphy, and tljey found there was no negligence; that the work was carefully and properly done — otherwise they could not have found, as they did, a verdict for defendant. (Decided June 8th, 1904.) This brings us to a consideration of the rulings of the Court on the prayers which were offered by the plaintiff and defendant Murphy respectively at the close of the testimony on both sides. The plaintiff’s prayer was properly refused, because it is based upon the proposition that the plaintiff is entitled to recover without regard to the question of negligence, whereas the settled rule is that negligence must be shown before there can be a recovery. The third and third and a-half and fourth prayers of the defendant only announce the well-settled law that if a person who is'about to excavate his own lot in proximity to the wall of an adjoining house gives reasonable notice thereof to the adjoining owner, the latter is bound to protect his own property and the former is. not liable for damages sustained, if the excavation is made with ordinary care. Shafer v. Wilson, 44 Md. 282; Bonaparte v. Wiseman, 89 Md. 12. The fifth of defendant announces an equally plain proposition, viz., that if the defendant, Murphy, gave notice, as required, to Dr. Morgan to protect the property occupied by the plaintiff and if said Morgan employed Rippel to do so and the wall was cracked, no recovery can be had against Murphy. Obviously so, because according to the hypothesis of the prayer he was an absolute stranger to that part of the work. The uncontradicted testimony of Rippel is that the injury occurred after the time he undertook to do the work for Dr. Morgan and while he was doing the underpinning for him and not for Murphy. Defendants’ sixth prayer is also under the authorities cited free from error. It is to the effect that even if Rippel was acting for Murphy, still if due and ordinary care was exercised in the work, Murphy is not liable. Finding no errors in the rulings excepted to the judgment appealed from will be affirmed. Jtidgmcnt affirmed with costs.