Nelson v. Godfrey

Caton, J. This action, was brought to recover damages resulting to the plaintiff by reason of an excavation for a coal cellar, made by the defendant, in the sidewalk in front of his premises on State street, in the city of Alton, through which the water from the gutter of the street passed into the defendant’s cellar, and thence through several other cellars, into that of the plaintiff, and did the damage complained of. We think the plaintiff was clearly entitled to recover, and had the jury understood the law as applicable to the case, they could not have avoided rendering a verdict in his favor. The case shows that in April last, the excavation was made in the sidewalk for the coal cellar, by which all of the earth was removed from behind the curbstone which formed that sjde of the gutter next the sidewalk. The curbstone was at first supported in its place by wooden props, and afterwards an eighteen inch wall was built up on the side of the excavation next to the street, so that a part of the curbstone rested upon the edge of the wall, which was extended up from four to eight inches against the back or lower side of the curbstone, which was two feet in ■depth. This wall was sufficient to support the curbs tone in its jolace when no extraordinary pressure was applied to it from without In this condition the work upon the wall was suspended. This wall might have been raised to within four inches of the top of the curbstone in one day, when it would have been ready to have received the flagging for the sidewalk, and when it would have afforded a perfect support to the curbstone, and effectually secured it against accident. The work was allowed to remain in this insecure condition for ten days or more, when an unusually heavy rain occurred in the night time, and the water rushing down the gutter in large quantities, undermined and forced in the curbstone, and even prostrated the wall, which had been erected partially under and back of it. All the witnesses agree, that if the excavation had not been made, or if the curbstone had been made sufficiently secure, the water would not have got into the cellar, and no damage would have resulted. We are not prepared to admit, that the defendant could, by reason of his ownership of the adjoining property, claim the absolute right to take .up the sidewalk and extend his coal cellar •under it, but as such a privilege is of great convenience in a city, and may with proper care be exercised with little or no inconvenience to the public, we think that authority to make such «cellars may be implied iu the absence of any action of the corporate authorities to the .contrary, they having been aware of the progress of the work. But while we infer a license thus to use a part of the public street, it is on the condition that the person doing so, shall use more than ordinary care and expedition in the prosecution of the work. Neither the public or other individuals can derive any possible advantage from such a use of the sidewalk, but it is solely for the defendant’s benefit, and he must see to it that he does not endanger the safety of others, and •.that he incommodes the public as little as possible. It is a familiar principle, that when one-enjoys a privilege as a matter of favor, in consideration that he alone can enjoy the benefit, he is required to use extraordinary care in the exercise of the privilege. A familiar instance of the application of this rule, is the bailment of a horse. If the horse is loaned without compensation, the bailee is bound to take extraordinary care of the horse, but if he pays for .the use of the horse, he is not responsible for Ms loss, if ordinary care is exercised. In tMs case but for the favor extended to the defendant, the plaintiff would not have sustained this loss. The defendant alone could reap a benefit, and he ought to be responsible for all damages which might have been avoided by special vigilance and care. Here is a palpable case of the want of even ordinary care. When the work of one day would have secured everything from all danger, he suffered the work to remain in an unfinished and insecure condition for nearly two weeks. It is no excuse that he thought it secure, when he must have known that there was a liability, if not a probability of injury from it. A week before the accident occurred, the defendant was admonished of the danger in case of a heavy rain, which he admitted, and promised to provide against it. TMs he neglected to do; and upon every principle of law and justice he ought to suffer the loss, rather than have it fall upon an innocent party, who could not derive any possible benefit from the work, and who had no control over it. Before the defendant disturbed the sidewalk at all, he should have had all the material on hand and a sufficient number of workmen to have finished it in the shortest practicable time. Had he done tMs, private property would not have been endangered, and but little inconvenience would have resulted to the public. The judgment must be reversed with costs, and the cause remanded for further proceedings. Judgment reversed,