Bonaparte v. Wiseman

| Md. | Mar 14, 1899

This suit was instituted by the appellee, who is life-tenant of the house and lot No. 815 King street, in Baltimore City, to recover damages for injury to her house resulting from an excavation made by the appellant on the adjoining lots, Nos. 811 and 813 King street, for the purpose of erecting a warehouse thereon. All three lots were originally improved by dwellings. The house of the appellee was separated from those of the appellant by an alley two and a-half feet wide, which lay almost entirely upon the land of the latter, but was used by both parties in common.

The appellant, desiring to erect a warehouse upon his two lots, made a contract with one Anderson, a competent builder, to tear down the houses on the lots and erect thereon a warehouse. In the latter part of 1893 Anderson tore down the two old houses to the level of a few inches below the ground and also excavated a portion of the rear of the lots behind where the houses had stood and adjacent to the unimproved part of the appellee's lot. He did nothing further to the property until about the middle of March, 1894, when he took out the foundations of the old house next to that of the appellee and excavated for new foundations to a depth of three or four feet below the foundations of her house, which settled and was injured. There was evidence tending to show that the excavation was the cause of the injury to the house, and also evidence tending to show that the appellee did not have previous notice or knowledge of the appellant's intention to excavate below the level of her foundations.

At the request of the appellant the jury were required, in pursuance of the Act of 1894, ch. 185, to find specially upon the following interrogatories, to each of which they answered "No." "Was the plaintiff, or her representative, Theodore Seigwart, notified of the intended digging below the foundation wall a reasonable time before the said digging below the foundation was begun?"

"Did the plaintiff or her representative, Theodore Seigwart, have actual knowledge of the defendant's intention to excavate below her foundation a reasonable time before such excavation was begun?"

The general verdict and judgment were against the defendant and he took this appeal.

The appellant offered seven prayers, all of which were granted except the fourth and seventh. The seventh prayer will be first considered by us. This prayer is based upon the assumption that it appeared from the plaintiff's own evidence that she had knowledge in December, 1893, or at latest in January, 1894, of the character and extent of the work about to be done and its proximity to the easternmost wall of her house and took no precautions for its protection. We think the Court below properly refused to grant this prayer, because, while the record shows that the appellant's contractor, Anderson, demolished the two old buildings on his lots during the time extending from September until December, 1893, and excavated for new foundations along the division line in the rear of the appellee's house, it also shows that he then ceased work entirely and allowed the property to remain in the condition in which it was at that time for more than two months. The work done by the appellant's contractor, was of course, open to the observation of the appellee or the occupants of her house and doubtless led them to infer that the appellant was getting ready to improve his lots and the fact appearing from evidence, that he owned a warehouse at the rear of these lots, fronting on Pratt street, may have led them to further infer that he intended to build on the lots an addition to his warehouse, but it was asking too much of the Court to request it to direct the jury to assume from the evidence that the character and extent of the work about to be done by the appellant was apparent to the appellee or her agent in December, 1893, or January, 1894. The wisdom of the Court in refusing to grant this prayer was fully confirmed by the fact that the jury returned a negative answer to the interrogatories requiring them to pass specially upon the question of the possession of such knowledge by the appellee or her agent.

The appellant's fourth prayer asserts the broad proposition that the appellant was not liable for the injury to the appellee's house by the excavation on his lots, because the work was done by Anderson as an independent contractor under the written agreement appearing in the record.

The question of the extent to which the employment of an independent contractor to do work, which is placed entirely under his control, will relieve the employer from liability for injuries resulting to third persons has been much discussed by the Courts. The general principle broadly stated is that when the work is done by a competent contractor under an agreement which gives him complete control of the work and of the persons employed by him to do it, such persons will be his servants and not those of the employer and the latter will not be liable for injuries caused by the negligence of the workmen, because they are not his servants and are not under his control. But this doctrine has been repeatedly held not to relieve an employer from all responsibility of every kind for the consequences of defective or unskillful work done on his premises even by the servants of an independent contractor. In the case of Deford v.State, use of Keyser, 30 Md. 179" court="Md." date_filed="1869-02-19" href="https://app.midpage.ai/document/deford-v-state-ex-rel-keyser-7892680?utm_source=webapp" opinion_id="7892680">30 Md. 179, CHIEF JUDGE ALVEY, in an able and elaborate opinion reviews the leading cases upon this subject, quoting at length from the opinions of the learned Judges who decided them, and comes to the conclusion that the distinction is well established between the cases in which, when work is being done under a contract, an injury is caused by negligence in a matter collateral to the contract and those in which the thing contracted to be done causes the mischief. In the former class of cases the employer is not liable for the injury but in the latter he is.

In the case of the Ohio Southern R.R. Co. v. Morey, 47 Ohio St. 207, the Court say: "One who causes work to be done is not liable ordinarily for injuries that result from carelessness in its performance by the employee of an independent contractor to whom he has left the work without reserving for himself any control of an execution of it. But this principle has no application where the resulting injury instead of being collateral and following from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable, though the negligence is that of any employee of an independent contractor." In the same case, at p. 214, the Court say: "It is equally clear that the law devolves upon every one about to cause something to be done which will probably be injurious to third persons, the duty of providing that reasonable care shall be taken to obviate its probable consequences. In this class of cases the doctrine of respondeatsuperior has no application; his liability is based upon the principle that he cannot set in motion causes dangerous to the person or property of others without taking all reasonable precautions to anticipate, obviate and prevent this probable consequence." The same doctrine has been announced by this Court in the recent case of the City Suburban R R. Co. v. Moores,80 Md. 352, where the opinion says: "Even if the relation of principal and agent or master and servant do not strictly speaking exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of it."

Under these authorities the appellant would have been liable for injury happening to the house of the appellee from the excavation of his lots if it might reasonably have been anticipated that such injury would probably occur as a consequence of an excavation made in the location and to the depth appearing from the evidence in this case. The question as to whether such injury might reasonably have been anticipated as a probable consequence of the excavation was a question of fact for the jury, which would have been taken away from them if the appellant's fourth prayer had been granted.

There remains to be considered the further question, did the appellant owe to the appellee the duty of giving her notice of his intention to excavate in near proximity to her wall, a reasonable time in advance of commencing the work, in order to afford her an opportunity to take suitable precautions for the protection of her foundations? In the argument of the case the appellant's counsel earnestly contended that he did not owe any such duty, and the appellee's counsel contended with like earnestness that he did. The cases are not uniform upon the subject of the duty of a person, who is about to excavate his own lot adjacent to another's house and below the level of its foundations, to give such notice, and it cannot be said that there is an imperative obligation to give it. The obligation to give the notice, like that to see that the excavation is made with due care, seem both to rest upon the recognized proposition that a party in possession of fixed property must take care that it is so used and managed that other persons shall not be injured, whether it be managed by his own servants or contractors or their servants. If one about to excavate his own lot do it or cause it to be done so carefully as not to injure the adjacent houses he need not give notice to their owners; if, on the other hand, he give timely notice to the adjacent owners the burden will be thrown upon them to protect their own property and he will not be liable for damages sustained by them if he makes the excavation with reasonable and ordinary care.

In the case of Shafer v. Wilson, 44 Md. 280, the Court say: "There seems to be no doubt that an adjacent owner of land has no right to deprive his neighbor of the natural support afforded by his soil. The authorities are somewhat conflicting as to the extent of the right of the owner of any adjacent ground built upon to improve his own property, where he is under no disability (from grant of easement, prescriptive right or necessity), to restrict him, although it may operate to injure his neighbor's property. But it is agreed on all sides, that his right, whatever that may be,must be exercised with due care and skill at his peril, to prevent injury to the adjacent owner." In the same case, at p. 281, the Court, in discussing the duty of the party about to make such excavation to give timely notice of his purpose to the adjacent owner, say, "Such notice would seem to be a reasonable precaution in a populous city, where buildings are necessarily required to be contiguous to each other, and improvements made by one proprietor, however skilfully conducted, may be attended with accidental and disastrous results to his neighbors, who ought to have an opportunity to take the steps necessary to protect themselves and their property." In support of these views the Court cite La Sala v. Holbrook, 4 Paige Ch. 169" court="None" date_filed="1833-07-22" href="https://app.midpage.ai/document/lasala-v-holbrook-5548041?utm_source=webapp" opinion_id="5548041">4 Paige Ch. 169; Kent'sCommentaries, vol. 3, p. 532; Washburn on Easements, p. 435,c.

The law as laid down by the cases we have cited does not permit the owner of a lot of ground in a populous city like Baltimore to make an excavation, even through an independent contractor, upon his lot in near proximity to his neighbor's house, and to a depth of some feet below the level of the foundations of that house and be under no obligations either to see that the contractor in doing the work protects the neighbor's wall by the exercise of due care, or to give the neighbor timely notice of the nature and extent of the intended excavation, that he may take due precautions for the protection of his own wall.

The appellant's fourth prayer ignored the obligation on his part either to see that the work on his lots was done with due care or to give timely notice to the appellee of his intention to have the work done, and treated the employment of Anderson to do the work, under a written contract, as being all that was required of him in the premises. The prayer was therefore properly rejected.

The judgment will be affirmed with costs.

Judgment affirmed.

(Decided March 14th, 1899).