Bohrer v. Dienhart Harness Co.

Black, J. — The appellee recovered judgment against the ajipellant. The questions presented on appeal were raised by the appellant’s exception to the court’s conclusions of law upon the facts stated in a special finding. The south part of a certain lot in the city — 491 — of Lafayette was owned by one James D. Marshall. There was on said south part a three-story brick building, which was occupied and used, under a lease from said Marshall, as a storehouse and place of business, by the appellee, a corporation engaged in manufacturing and jobbing harness and saddlery, and it had in said building goods of the value of $5,000.00. The appellant owned all the remaining and north part of said lot. The lot was at the southeast corner of Third and Feriy streets, the former running north and south, the latter east and west. Said building fronted on Third street and extended back sixty feet, its north wall of brick, with stone foundation, extending along the north line of the part of said lot owned by Marshall, and immediately adjacent to the south line of the part owned by the appellant. The north line of the lot extended seventy feet along Ferry street. There was an old brick building on the part of the lot owned by the appellant, its south wall being about seven feet from the dividing line. The appellant, desiring to remove said old building and erect a new brick building covering all of his portion of said lot, with a basement or cellar, applied for, and upon giving bond as required by a city ordinance obtained, from said city, on the 11th of February, 1892, a proper building permit, good from that date until August 11, 1892, whereby he was permitted to use one half the width of Third and Ferry streets, immediately fronting the property which it was proposed to improve, for depositing building materials thereon, commencing at the outer edge of the adjacent sidewalk, it being expressly stipulated therein that nothing contained in the permit should be construed as permitting the obstruction of any street, alley or gutter so as to prevent the free passage of persons, vehicles or water upon or along the same. About the 1st of — 492 — April, 1892, the appellant contracted with the firm of Green & Demerly, brick and stone masons, for the tearing down of said old building and for the erection of said proposed building as to brick and masonry, the contract providing that said firm, after using such of the bricks in the old building as were suitable for the purpose, were to furnish the other bricks for the proposed building and the stone for its foundation, and were to do the work, including tearing down and cleaning the bricks, for $1,095.75. Green & Demerly, taking said contract by the job, were to employ and pay their own laborers and were to receive from the appellant said sum for said work and new materials. In a few days after the making of this contract, it was mutually agreed between said firm of Green & Demerly, the appellant and one Henry Martin, that Martin should have the job of tearing down the old building, cleaning the bricks and removing the useless nibbish, and that for this work he should receive from the appellant $130.00, which sum should be deducted from the the amount which it had theretofore been agreed was to be paid to Green & Demerly; that Martin should have charge of the tearing down of the old building and cleaning the bricks for the appellant; and that he should employ and pay such assistants as he might require in doing this work. In pursuance of this contract Martin tore down the old building, cleaned off such of the bricks as were suitable to be placed in appellant’s new building, and hauled away the worthless materials and rubbish, completing the job about the latter part of May, 1892. He was paid in full therefor by the appellant said sum of $130.00 at or soon after the completion of the job. In the execution of this contract Martin employed and paid the men assisting him, and the appellant exercised no control over — 493 — Martin or his employes in directing how the work should be done, except that the appellant did direct Martin to place and pile such of the bricks as were to be used in the proposed building on Ferry street, immediately north of appellant’s part of said lot, but he did not direct Martin to pile or place any of the bricks in the gutter of said street. Martin, in executing this contract placed and piled the bricks on the south side of Ferry street, from near the center of the street, where the pile was about eight feet high, and reaching south in and over the south gutter of the street to the curbstone, where the pile was about two feet high, the pile from east to west being about thirty feet long. The bricks remained so piled until long after the 23d of June, 1892. Between one and two weeks after the completion by Martin of his contract as to the old brick house and the payment to him by the appellant of $130.00 therefor, Martin and the appellant entered into a contract whereby Martin was to do the excavating and removing of the earth for the basement or cellar of the proposed new building; said contract being made upon the acceptance by the appellant of a written proposition from Martin dated June 8, 1892, whereby he proposed to excavate the cellar seventy feet long and forty feet wide and six and one-half feet deep for $105.00, all dirt to be hauled away. Upon the acceptance of Martin’s proposition, he commenced the execution of the contract, employing and paying his workmen without directions from the appellant. He hauled the soil from the cellar with wagons and teams, and in so doing he formed a wagon way from the cellar at its northeast corner, leading therefrom across the sidewalk and gutter on the south side of Ferry street. This -wagon way crossed the gutter immediately east of the old bricks so placed on said — 494 — street and in tlie gutter thereof. Ferry street had a descending grade from east to west of eighteen inches in the one hundred feet, and at times of rain the surface water from some three or four blocks east and south passed and flowed off through said gutter. The curbstone between the gutter and the sidewalk was ten inches high from the bottom of the gutter. The old bricks so placed and piled and remaining in the gutter would and did obstruct and prevent the passage of water coming from the east therein. Martin did not remove the curbing, but he placed boards and trash in the gutter so.as to facilitate the passage of his wagons in removing the earth. As the excavation proceeded, the wagon way became more and more inclined so as to reach the bottom of the progressing cellar. On the 23d of June, 1892, in the afternoon, Martin had removed most of the earth from the excavation. On the. south side, up to the foundation wall of the building on MarshalPs part of the lot, the earth was removed for most of the way down to, and even with, the bottom of said foundation, but for the space of some fifteen feet on the west end of said foundation wall and for the space of some twenty feet on the east end thereof, the excavation had not been carried down to the bottom of the wall by some one to two and one-half feet, there being less depth of excavation near the corner of the cellar and where the wagon way led out of it. For the length of three or four feet near the middle of the wall, the excavation had been carried down from two to four inches below the level of the bottom of the wall. The earth toward the bottom of the excavation, and under said wall was composed of a fine gravel, and when the excavation was so carried below the foundation, fine gravel dropped or rolled out from beneath the wall for two or three inches back from its north side. — 495 — The wall was twenty-one to twenty-two inches thick and six feet six inches deep, composed of rock laid in mortar. Many of the stones were small and of irregular and improper shape to make a strong and durable wall, especially so as to those stones in the north side of the wall, abutting on appellant’s soil. There were no bond stones, or, if any,, very few, reaching through the entire thickness of the wall. Some of the stones on the north side were laid edgewise, so as to be-of little help in giving strength to the wall, which had been built about -twenty-five years, and the mortar, if ever good, had lost, by reason of age and, dampness, most of its cohesive strength, so that it served but little purpose in supporting and giving strength to the wall. The situation and condition of the bricks in the street and gutter and the excavation and wall were plainly observable and known to both the appellant and the appellee, through its president and secretary. The appellant, from the time of commencing to tear down his old brick building up to and including the 23d of June, 1892, visited the work two or three times a week, for a short time, to see how the work was progressing, and the president and the secretary of the appellee were present daily in the prosecution of appellee’s business in the Marshall building, and they had full control and management of appellee’s business. Toward the close of the afternoon on the 23d of June, 1S92, there were indications of a heavy storm of wind or rain or both, and Martin and his employes, to avoid the threatened storm, quit their work of excavation about half past five o’clock, when it had commenced to sprinkle. Soon afterward there was a heavy wind from the northwest, and soon thereafter a heavy shower of rain accompanied Avith a strong — 496 — wind. Said fall of rain caused the water to gather and flow west in said south gutter of Ferry street in considerable volume. By reason of said obstruction of said gutter by said old bricks, said water was forced over the curbstone (said curbstone being lower than the center of the street), and ran down and along said inclined wagon way into and upon said excavation, and thence over and against said foundation wall and the earth supporting it, and thereby caused said foundation wall to become still weaker, and caused the earth under and adjacent thereto to become loosened and to still further give way and settle at the place under the wall where the excavation had gone deeper than the bottom thereof, and thus caused the wall to give way at that point, and thus caused the entire foundation wall and the brick wall of said building thereon to fall, carrying down the floors and roof of the building and casting the stones, bricks and mortar, together with many of the appellee’s goods, into the cellar of said Marshall building and said excavation, thereby destroying and damaging the stock of goods owned by the appellee in said building, to its damage in the sum of $1,675.51. It was found that the foundation wall, with the lateral support of the appellant’s soil, before it was so removed, was reasonably safe and durable, and sufficient to support the brick wall of the Marshall building, but that without such lateral support, and with appellant’s said soil removed, said wall was insufficient and liable to fall from any slight cause that might reasonably be expected to occur at any time; that said wall did maintain itself intact for some two or three hours after the removal of appellant’s soil; that neither the appellee, the appellant nor Marshall, before the excavation and removal of the soil had any knowledge of the formation and character of the — 497 — foundation wall, and neither of them had any notice, expectation or fear that said wall and building were liable to fall on account of the excavation and the character and condition of the wall, except that some bystander on the sidewalk had remarked, in the presence of appellee’s president, that there was danger that the wall would give way and fall, but said remark made no impression on said president, and he had no apprehension of what did occur. Said Marshall was not a resident of this State, but resided in the city of Chicago,( and had not been in the city of Lafayette for several years. The building was in the possession of his tenant, the appellee, and he knew nothing of the proposed building or said excavation, or of the falling of his building, until after the 23d of June, 1892. The court found that the immediate cause of the giving way and collapse of the foundation wall and said building and said damage was the flowing in of the water from the obstructed gutter, down and along the wagon way into the excavation and against the wall and the earth thereunder, as above stated; that at the time of the fall of the building it had been raining very hard for about one-half an hour; that the rain was preceded and accompanied with a very heavy wind, blowing from the northwest; that the rain and wind continued for a short time after the fall of the building, and the water from all of said rain thus flowing into the excavation from the obstructed gutter, flooded the excavation and also the cellar under the Marshall building to the depth of from ten to twelve inches above the bottom of the foundation wall; that had said wall been well constructed and of the strength of foundation walls usually placed to support the kind of building erected thereon, the water would not have affected or injured — 498 — it so as to cause it so to give way and fall. Martin when employed to do each of said jobs was a competent and experienced workman in such work, and Green & Demerly and Martin were, and for many years had been residents of said city of Lafayette. In making said excavation, Martin and his employes were careful, in that they did not remove or strike or disturb any of the stones in said foundation wall, and did not dig under it at any place. The president and secretary of the appellee knew, from the time that appellant commenced tearing down the old brick building, that he was going to erect a new building-covering all of his part of the lot, with a cellar thereunder, and they were present from day to day and saw how the work was being done and how the gutter was being obstructed, and they made no objection thereto. The owner of’land has the absolute legal right that it, in its natural condition without any structure or artificial weight thereon, shall not be deprived of the support which it in such natural condition has from adjoining land; and he may recover for the violation of such right, without regard to the presence or absence of negligence on the part of the person who violates the right by the removal of such support. Where the land is not in its natural condition, but has a building thereon, as in the case before us, the right of support without regard to negligence does not extend to thé increased weight caused by the building, and for the removal of the support without negligence there can be no recovery for any loss greater than would have resulted if the land had not been burdened with the superincumbent artificial weight. Where one, in making improvements on his own land, excavates it and thereby endangers the support of a building upon the adjoining land of another, the — 499 — former, by giving notice to the latter, may relieve himself of the necessity of using extraordinary efforts to protect the building; but in making such excavation ordinary care must be exercised to avoid such danger, and the person making it will be responsible for the consequences of negligence therein of himself or his servants. This subject has been discussed satisfactorily, and, for the purposes of this case, sufficiently, in Block v. Hazeltine, 3 Ind. App. 491, and Moellering v. Evans, 121 Ind. 195. The appellee having' had knowledge from the beginning of the intention and proceedings of the appellant, the latter was not bound to use any extraordinary precautionary measures in making the excavation. As to any injury that might occur to the appellee from the making of the excavation in an ordinarily careful way, it devolved upon it to take needed precautions. It was not incumbent on the person making the excavation with ordinary care to shore up the foundation wall; but if such act of protection was needed under the circumstances, it belonged to the appellee by way of self protection. Block v. Hazeltine, supra. It does not appear that the excavation was not made with ordinary care, or that the building fell because of negligence in the making of the excavation. On the contrary, it appears that the excavation was made with ordinary care, and that the building fell from other cause, and not as a proximate result of the mere making of the excavation, or of the manner in which it was made. The injury, therefore, did not occur because of the failure of the appellee to take prudent measures against the result of the lawful work of excavating the cellar with ordinary care. It was not under obligations to anticipate injury from negligence or to guard against it. After the work on — 500 — the excavation ceased, the wall still stood uninjured, and, so far as the making of the excavation is concerned, it would be the expression of a mere conjecture to say that it would have caused the fall of the wall; and, at all events, it was a mere condition, and not the cause'of the injury. The cause, as found by the court, was the flow of water into the excavation, and the excavation and the wall were in such a condition, without the fault of any one, that the ingress of water in large quantity would and did cause the fall of the wall as a natural result. The great access of water was caused by the wrongful stoppage of the gutter, and whoever was responsible for that stoppage was liable for the injury to the appellee. To render him so liable for the proximate and natural result of his. wrrong, it was not necessary that the particular damage which so accrued should have been actually foreseen or expected. If he had been fully' acquainted with all the circumstances which actually did exist at the time, as a man of ordinary prudence and experience he must have thought it reasonably possible that such consequences would follow from his negligent, act, if they had been suggested to his mind. In such a case he must answer for such consequences. See-Railway Co. v. Wood, 113 Ind. 544; Clore v. McIntire, 120 Ind. 262; Machine Co. v. Richter, 2 Ind. App. 331; Shear. & R. Neg., section 29. It is claimed on behalf of the appellant that the appellee ought not to recover, because all the work was done by independent contractors, and considerable space is given in the briefs to a discussion of the law relative to injuries caused by the faults of independent contractors; but we are unable to find place-in the facts for the application of such principles of' law. The appellant, in February, obtained a permit from — 501 — tlie city, which was in force at the time of the injury, and which expressly excepted the right to obstruct the flow of water. About the 1st of April, he let the. contract to Green & Demerly. The exclusive possession or control of the premises was not turned over to that firm. Green & Demerly were not to do all the work. At first, the contract provided that they should tear down the old brick building and clean the bricks, and should do the brick and stone masonry, using the old bricks and furnishing the other bricks and the stone. They were to receive a certain sum for “said work and new material.” Shortly after the making of this contract it was modified, the work of tearing down of the old building and the cleaning of the bricks being given up by Green & Demerly, and turned over to Martin, and a certain deduction was made in the agreed compensation of Green & Demerly, being the amount given by the appellant to Martin for his work. Thus the work to be done by Green & Demerly was restricted to the stone and brick masonry, which would not commence until after the excavation of the cellar, and it does not appear that at the time of the injury Green & Demerly were in possession or control of the premises, or that they had ever had possession or control, or that they had commenced to do anything under their contract. Martin and his laborers did the work of tearing down the old building and cleaning the bricks without directions, but the appellant gave directions for the piling of the bricks in the street, though he did not direct Martin to pile them in the gutter. But Martin completed this work and received his pay in full for it, and there does not appear to have then existed any contractual relation between him and the appellant until between a week and two weeks after — 502 — ward, when they entered Into a new and entirely distinct contract for the excavation of the cellar. Martin’s possession and control of the bricks in the gutter had then ceased, and he had possession and control of the premises for the excavation of the cellar, and Green & Demerly had not yet taken possession or control of the bricks or of the premises. The bricks in the gutter were owned by the appellant, and were in his possession and control. He left them where Martin had placed them. The appellant was responsible for their remaining in the gutter while the cellar was being excavated. So, if it is true that Martin did not cause the injury by negligence in the excavating of the cellar, but the proximate cause was the obstruction of the flow of water in the gutter whereby it overflowed into the cellar, then the appellant, being at the time of the injury in possession and control of his own bricks in the gutter, was responsible for the injurious result, and there is no occasion for the application of the principles of law discussed relative to independent contractors. The judgment is affirmed.