Campbell v. Lunsford

83 Ala. 512 | Ala. | 1887

CLOPTON, J.

— The issues of fact were tried by the court without the intervention of a jury, as provided by the act establishing the City Court of Birmingham. The conclusions and j udgment of the court on the evidence being presented for review, we are required to review them without any presumption in favor of the ruling of the court. If, on the entire evidence, the plaintiff can not recover under either count of the amended complaint, the ruling on the demurrer to the 'fourth count, if erroneous, is error without injury.

The action is brought by appellant to recover for personal injuries produced by the falling of a brick wall. Eor the purpose of "obtaining a broader and firmer foundation for a building, which the defendant was having erected on his own premises by contracts, it was deemed necessary to undermine a rear wall on the adjacent lot. In order to support the wall during the process of undermining, pieces of timber, denominated needles, were extended through it, intended to rest upon firm earth on both sides. Th®y were tightly keyed, and supported by posts. The negligence as alleged, and as the proof tends to shciw, consists in the failure to extend them through sufficiently to enable them to rest on solid ground on the inside of the wall. The necessity for this work was not discovered until after the original contracts were made, and was not included therein. It was extra work, and the mode of supporting the walls, while being undermined, was directed by the architect, who was employed to superintend the erection of the building. The architect was not an independent contractor, beyond the control of the defendant as to the manner of doing the work. It is shown that he had the ultimate power, as owner, to order how it should be done. Having reserved and possessing this power, the defendant is liable, notwithstanding the mode was left to the judgment and direction of the architect, for injuries caused by the negligent performance pf the work, the other essentials to create a liability to tbe particular person injured being established.

Tbe defendant is not responsible to tbe plaintiff,’ unless there was tbe neglect of duty owed to him — unless, as between him and tbe defendant, there was a want of due care. Tbe lot is tbe private property of tbe defendant, and tbe building was in process of construction. It was not a business bouse, nor a place where tbe public are expected or impliedly invited or induced to come, .for tbe transaction of business, or for other purposes. To trespassers or idlers, or persons visiting tbe premises merely for their individual benefit, or from curiosity, tbe defendant owed no duty other than that no willful or wanton injury should be done. To create a duty to tbe plaintiff, be must have sustained a relation to tbe business, or to tbe defendant, equivalent to an invitation or inducement to come on tbe lot. Tbe duty to keep the structure free from defect likely to produce injury only extends to persons sustaining such relation. — M. & E. Railway Co. v. Thompson, 77 Ala. 448; Pierce v. Whitcomb, 21 Amer. Rep. 120; Beach Con. Neg. 17.

Tbe duty to tbe plaintiff is founded, in tbe first count of tbe complaint, on the averment that- be was in tbe service of the defendant, and employed in tbe work of undermining tbe walls; and in the other counts, that be was there by tbe invitation and license of defendant. It is incumbent on plaintiff to establish tbe facts, oil which it is claimed that a duty arises. There can be no pretense, on tbe evidence, that tbe plaintiff was in tbe service of defendant. He was not employed nor paid by him. If at tbe place of tbe work by tbe implied invitation or inducement of defendant, it was by reason of being in tbe service of Carr, who was employee! to do tbe undermining. On this question of fact, tbe testimony of tbe plaintiff and Carr is in direct conflict; and when considered in connection with tbe corroborating evidence, what is tbe fact remains in doubt. As tbe burden of proof i's on tbe plaintiff, we should bold, if necessary to a decision, that tbe plaintiff has failed to satisfactorily prove this employment; but, as this is in doubt, we prefer to put our conclusion on other grounds.

Admitting that plaintiff was at tbe place by tbe implied invitation and license of tbe defendant, bis right to recover depends upon tbe condition, that tbe dangerous character of tbe work was unknown to him, or, if known, that be exercised ordinary care and caution to avoid injury. — Parker v. Port. Pub. Co., 81 Amer. Rep. 262; M. & E. Railway Co. v. Thompson, supra. It appears from the evidence that the defendant objected to the mode adopted to support the wall, and on more than one occasion objected to the laborers being worked under it. He testifies that, during the afternoon of the day of the injury, he was present, and, supposing the plaintiff to be in charge, said to him, that he (defendant) would not have the men to work under the wall, it was too dangerous; to which plaintiff replied, he reckoned there was no danger. It is true, this is denied by plaintiff; but Whitehead testifies that he heard defendant say substantially the same thing when plaintiff was near, and that he also informed plaintiff that it was dangerous; to which he answered, “he guessed the men knew their business.” As to the plaintiff, it may be regarded an obvious danger, though he did not know how far the needles extended, and it may have appeared safe. Two thirds of the wall had been undermined and built up, during which time the needles proved a sufficient support. When the excavation under the unfinished part was completed, the plaintiff stepped on one of the needles, for the purpose of dropping a plumb line. On his doing so, the wall immediately fell. It is clearly apparent from the facts, that this act of the plaintiff was the immediate cause of the falling of the wall. Being advised and cognizant of the danger, it was the duty of the plaintiff to use proper care, and make reasonable effort to avoid it. The evidence satisfactorily shows, that, as both sides of the wall had been built up, it would have been the easiest and safest way to give directions for the work, to have gone into the excavation, and stretched the line across the unfinished space. Though it may be that the additional weight of plaintiff would not have caused the wall to fall, if the needles had extended far enough, they had been a sufficient support until the time of the injury, and probably would have so continued, if plaintiff had not stepped on one of them. Having notice of the dangerous character of the work, and having increased the danger by .stepping on the needle, when there was an easier and safer way, the plaintiff can not be regarded as having used proper care and caution to avoid the danger. His negligence proximately contributed to his injury.

Affirmed.