Bonapart v. . Nissen

Clarkson, J. At the close of plaintiff’s evidence and at the close of all the evidence the defendants, W. M. Nissen and the city of Winston-Salem, made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. The jury having acquitted Blum & Company of any negligence, and there being also evidence to the effect that they were merely agents of W. M. Nissen, they are out of the picture. The jury found both W. M. Nissen and the city of Winston-Salem negligent as joint tort-feasors and there was evidence to sustain the finding. The jury further found that as between Nissen and the city of Winston-Salem there was no primary and secondary negligence or liability. No exception was taken to the issue. On the record, which is voluminous, we think there is ample evidence for the jury to find the joint negligence of Nissen and the city. The natural drain from the Nissen property was on the city market property. The city dug down the bank and built a concrete retaining wall near to the building on the Nissen property. *183 Tbe principle of law is stated thus in Porter v. Durham, 74 N. C., at p. 779. “It has been held that an owner of lower land is bound to receive upon it the surface water which falls on adjoining hig'her land, and which naturally flows on the lower land. Of course when the water reaches his land the lower owner can collect it in a ditch and carry it off to a proper outlet so that it will not damage him. He cannot however raise any dyke or barrier by which it will be intercepted and thrown back on the land of the higher owner. While the higher owner is entitled to this service, he cannot artificially increase the natural quantity of water, or change its natural manner of flow by collecting it in a ditch and discharging it upon the servient land at a different place, or in a different manner from its natural discharge.” Winchester v. Byers, 196 N. C., at p. 384. In reference to the reciprocal duty that Nissen and the city of Winston-Salem owed as adjoining property owners, we find in Davis v. Summerfield, 131 N. C., at p. 354 (see, also, 133 N. C., 325), the following: “The true rule deducible from the authorities seems to be that, while the adjacent proprietor cannot impair the lateral support of the soil in its natural condition, but is not required to give support to the artificial burden of a wall or building superimposed upon the soil, yet he must not dig in a negligent manner to the injury of that wall or building, and it is negligence to excavate by the side of the neighbor’s wall, and especially to excavate deeper than the foundation of that wall, without giving the owner of the wall notice of that intention, that he may underpin or shore his wall, or relieve it of any extra weight on the floors, and the excavating party should dig out the soil in sections at a time so as to give the owner of the building opportunity to protect it and not expose the whole wall to pressure at once. The defendants did not give any notice of the nature of their proposed excavation, and the evidence justified the jury in finding them guilty of negligence.” It was the contention of plaintiff that the Nissen building after being condemned was partly torn down and a certain wall was left standing for sometime in an unsafe condition. The foundation was too bad to build on. It could be readily seen, if the standing wall fell, it would, as it did, fall over the city concrete retaining wall into the curb market where people assembled for trade. That it was the duty of the city to so build- its concrete retaining wall adjoining the Nissen property that the natural drainage of water would not be thrown back on the Nissen property, the higher owner. That this was not done and that the retaining wall was defectively constructed and the water that naturally flowed from the Nissen property on the market lot had no sufficient *184 outlet, and owing to tbe heavy rains tbe water was ponded back of tbe concrete retaining wall of tbe city and sobbed and softened tbe eartb and weakened tbe foundation of tbe Nissen wall, wbicb was improperly built and made heavier by tbe wall being wet by tbe heavy rains, and these conditions caused tbe wall to fall. That both Nissen and tbe city of Winston-Salem failed to use due care under all tbe circumstances. That it could be reasonably anticipated that tbe particular injury or barm might follow tbe wrongful acts. Hall v. Rinehart, 192 N. C., 706. There was evidence to sustain these contentions and tbe jury found that they were jointly negligent. We think tbe verdict should be sustained and we find no prejudicial or reversible error in tbe record, as we will hereafter indicate. There are various contentions made by both Nissen and tbe city of Winston-Salem, but we do not think they are material from tbe view we take of tbe case. Both Nissen and tbe city of Winston-Salem contend that a new trial should be granted on tbe following excerpt from tbe charge: “She contends, gentlemen of tbe jury, further, that each of tbe defendants bad been guilty of actionable wrong, both collectively and separately, and that these wrongs caused tbe injuries she sustained. Tbe plaintiff sets out a number of different allegations of actionable negligence. It is not necessary that they prove each of these acts of negligence for you to find that any or all of tbe defendants have been guilty of actionable wrong. (If you should find by tbe greater weight of tbe evidence that tbe plaintiff has proved a breach of duty of any one of tbe defendants to tbe plaintiff, then tbe proving of that one breach on behalf of any one of tbe defendants is sufficient for you to answer tbe issue as to negligence against that particular defendant Yes.)” We give tbe whole of this part of tbe charge — tbe exception is to tbe above portion of tbe charge in parenthesis. This excerpt was taken from that portion of tbe charge setting forth tbe contentions, and tbe defendants contend that this statement leaves out a fundamental principle that tbe negligence of tbe parties must be tbe proximate cause of tbe injury. This is axiomatic, but tbe court below was merely setting forth in tbe contentions tbe duties of tbe parties. After setting forth fully tbe contentions of all tbe parties, the court said: “Gentlemen of tbe jury, these are tbe contentions of tbe respective parties. . . . Tbe burden of these issues, that is tbe 1st, 2nd, 3rd and 6th issues, is on tbe plaintiff to satisfy you from tbe evidence and by tbe greater weight of tbe evidence that she is entitled to recover of each of these defendants. As I told you in tbe beginning, this action is based on tbe alleged negligence of tbe respective defendants, or any of them. Now, it is necessary for tbe jury to understand what negligence *185 is. Negligence is the failure to do that which a reasonably prudent man would ordinarily have done under the circumstances and the situation, or the omission to use means reasonably necessary to avoid or prevent injury to others. To establish actionable negligence the plaintiff is required to show by the greater weight of the evidence, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff at the time and under the circumstances in which they were placed, proper care being that degree of care which a prudent man should exercise ordinarily under like circumstances and charged with a like duty; and, second, it must appear that such negligent breach of duty was the proximate cause of the injury, the cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.” “It is well settled that when there are conflicting instructions upon a material point, a new trial must be granted, as the jury are not supposed to be able to determine when the judge states the law correctly and when incorrectly.” Edwards v. R. R., 132 N. C., at p. 101. May v. Grove, 195 N. C., 235. The excerpt from the charge complained of was in the contentions. The charge fully covered the law. The allegations of actionable negligence and the breach' of duty set forth in the contentions are fully explained in the charge, what it consists of and negligence, and that it must be the proximate cause of the injury. We cannot see how the jury could have been misled and taking the contention with the charge on the law the matter is fully explained. If the contentions are strictly taken as a part of the charge and if we construe the contentions with the charge they are reasonably reconcilable. The charge should be considered as a whole. If the charge, as a whole, is correct, an expression standing alone, though technically incorrect is not reversible error. Purnell v. R. R., 190 N. C., 573. The record consists of 291 pages, which we have read with care. We have examined the assignments of error and authorities cited in the able briefs of defendants. We do not see any new or novel propositions of law. From a thorough examination of the record and authorities, we cannot find any reversible or prejudicial error. No error.