Smith v. Hardesty

Napton, Judge, delivered the opinion of the court. The instruction which the court gave at the instance of the plaintiff is erroneous. To say nothing of the entire want of testimony to authorize it, so far as we have been able to discover, it is not the law that the defendant is responsible for a carelessness which merely contributed to an injury to plaintiff. It may be that the plaintiff’s own conduct may have materially contributed to the same result, in which event the defendant would not be responsible. We are unable to see why the seventh instruction asked by the defendant was not given. That instruction was, that if the bank on defendant’s lot was caused to fall against the house, in the process of erection by plaintiff, by reason of the excavation on the lot upon which plaintiff was building, the verdict should be for the defendant. This would seem to be undoubtedly true as a proposition of law, and a number of witnesses seemed to be of opinion that this excavation of plaintiff’s was the true cause of the land slide. Judgment reversed and cause remanded; Judge Ewing concurs. Judge Scott absent.