Horowitz v. Blay

Person, J. (after stating the facts). Unless it has been shown that the injury to the building occupied by plaintiff is chargeable to some fault on the part of the excavators, it is, of course, unnecessary to determine whether Raymond, who had charge of the work, was an independent contractor or not. It appears from the record that Dr. Polozker desired to erect a building upon his lot with a basement of the ordinary depth and character. It was a legitimate object. And in the accomplishment of his purpose he or his employees had the undoubted right to excavate .the entire width of his lot, without incurring liability for injury to the adjoining building, unless, in the prosecution of the work, some duty to the owner or occupant of the building was violated. The mere fact that the excavation caused the wall of the. building to fall does not establish such liability. Ward v. Andrews, 3 Mo. App. 275. [497] It is clearly shown by the testimony of plaintiff’s witness Decker that the wall which fell should have been underpinned as a protection against the consequences of the excavation. And it is claimed by plaintiff that the duty of constructing such underpinning rested upon those making the excavation. In this she is mistaken. There is no evidence that the ground under the wall would have given way except for the weight of the building resting upon it. It was a clay soil, and held its place on' all other sides of the excavation. By placing the wall of her building upon the line with a three-foot foundation under it the adjacent owner could not impose upon Dr. Polozker, or his employees, the burden of supporting it by an underpinning before making use of his own lot. Gildersleeve v. Hammond, 109 Mich. 431 (67 N. W. 519, 33 L. R. A. 46); Hemsworth v. Cushing, 115 Mich. 92 (72 N. W. 1108); Bissell v. Ford, 176 Mich. 64 (141 N. W. 860). Plaintiff, as occupant of'the building, saw the work of excavating proceed day by day without taking any steps to protect her goods from possible injury. And it is to be assumed that the owner of the fee also knew that the excavation was in progress; for, if she did not, and those responsible for the excavation were guilty of any negligence in failing to notify her, the burden of proving such negligence rested on the plaintiff just the same as the burden of proving any other negligence. It was also shown that the excavators permitted water from the mains in the street to run into and accumulate in the excavation. If there had been evidence to connect such accumulation of water with the falling of the wall, it might have amounted to proof of negligence; for, although the excavators were not required to furnish the labor and sustain the expense of constructing supports for the wall, yet they were [498] bound to conduct the work of excavation with such ordinary care and skill as to avoid unnecessary injury to the building. Bissell v. Ford, supra; Larson v. Railway Co., 110 Mo. 234 (19 S. W. 416, 16 L. R. A. 330, 33 Am. St. Rep. 439). But the evidence does not show the depth of the water next to the ground under the wall, nor that any of the ground in that vicinity was softened or gave way, before the wall fell. In fact, the part of the wall that first came down was to the south of the deeper part of the excavation. These are the only specific acts of alleged negligence shown by the testimony. At the close of his proofs counsel for plaintiff did say: “We have witnesses here in court, and we now offer to produce them and produce testimony to the effect that the men actually in charge of the excavation on the premises were incompetent, inefficient, and negligent, and were a large part of the time decidedly under the influence of alcohol.” This offer was not sufficiently definite as to acts of negligence to make its rejection erroneous. It did not give the court any information as to the facts plaintiff could prove bearing upon negligence, but simply stated counsel’s opinion as to their legal effect. If the proofs had been received, it might have transpired that counsel was mistaken, and that they had no tendency to show negligence, or that the negligence shown had no relation to the injury. This court cannot justly reverse a case because of the exclusion of testimony unless it is able to see that the testimony, if it had been received, might have changed the result. Plaintiff having failed to show any negligence on the part of those making the excavation that contributed to her injury, the other questions raised become immaterial, and the judgment will be affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.