121 A. 283 | Conn. | 1923
Taking, first, the ruling on the motion to set aside the verdict as against the evidence. It is not denied that there was legally sufficient evidence of one or more of the specifications of negligence alleged in the complaint. The motion was based, as appears from the memorandum of decision on the motion and from the appellants' brief, on two claims of law, which also underlie other assignments of error, as to the legal duty of the defendants in conducting excavations in the highway, and as to the legal duty of the plaintiff to protect its own buildings, after having had *44 timely notice — actual or imputed — of the character of the excavation and the manner of conducting the work.
These claims are stated substantially as follows: (a) that because no burden rested on the defendants to maintain the plaintiff's buildings upon the plaintiff's land, they could not be held for injury to them unless they were guilty of negligence directly injuring the plaintiff's buildings, as by hammering, pulling, pushing, blasting or the like; (b) that it was the plaintiff's duty to protect its own buildings, and if, having timely notice of probable danger of injury from the withdrawal of lateral support by the proposed excavation, it failed to protect the same, it was guilty of contributory negligence.
As to the facts, the defendants' claim is that there was no evidence of any acts by them directly injuring the plaintiff's building, and that there was undisputed evidence of timely notice and of the plaintiff's failure to take any steps to protect its building.
The authorities do not support the defendants' claims of law above stated. Referring, first, to our own decisions: Trowbridge v. True,
The excerpts in the last three cases were deliberate rulings in each case upon the charge of the court, and they are supported by the overwhelming weight of authority. See the note to Hannicker v. Lepper, 6 L.R.A. (N.S.) 243 (
The defendants' contention as to these cases is that they are all inconsistent with the undoubted rule that the right of lateral support does not extend to buildings, unless the negligence referred to is understood to be limited to some act directly injuring the adjoining buildings; that is to say, to acts of trespass inflicting injury. The answer to that contention is found in the quoted excerpt from our opinion in Huber v. Douglas,Inc., supra, which points out the non sequitur. Because the defendants, acting under the authority of the City of Bridgeport, had the right to withdraw lateral support from the plaintiff's building, provided they did not cause the plaintiff's soil to settle of its own weight, it does not follow that they had a right to do so without taking reasonable care to avoid inflicting unnecessary harm. The maxim sic utere tuo ut alienum non loedas
expresses the common duty of taking care in the exercise of one's property rights. The right to withdraw lateral support from the plaintiff's buildings is not, as defendants contend, extinguished by the duty of taking reasonable care in exercising it. If the injury to the plaintiff's building had been unavoidable, the City of Bridgeport and its contractors might, after notice, have proceeded with the work and injured the plaintiff's building without liability. But if the injury were avoidable by the exercise of reasonable care, they must exercise their undoubted right to construct a sewer in the highway on the same terms, as against the lawful rights of others, that they, and all responsible persons, are required to exercise all other rights. In Charless v. Rankin,
The defendants rely strongly on Thurston v. Hancock,
It may be well to point out distinctly that the rule which the cases lay down does not make the excavator, an adjoining landowner, an insurer of his neighbor's buildings. It goes no further than to require him to exercise a reasonable degree of skill and care to avoid injuring them; and it seems that such a rule is necessary in order to secure to every landowner the fullest possible enjoyment of his rights to improve his own property. Courts, and in some jurisdictions legislators, have recognized that as land becomes valuable for building purposes, the common-law rule of property denying any right of lateral support to buildings cannot be carried to the point of licensing the adjoining owner to excavate regardless of the consequences to his neighbor's buildings, without, in effect, depriving the latter of his property right of building up to the dividing line, or, as in this case, up to the highway line. It is no longer possible under modern urban conditions to say that an owner who builds to the line does so at his peril; and, on the other hand, it is not possible to say that his neighbor shall not thereafter excavate near the adjoining buildings except at his peril. Between equal and *50 conflicting property rights a compromise has been effected by the rule in question, and in applying it its purpose should be kept in view; to wit, to secure to each of the adjoining owners in equal measure the fullest possible enjoyment of his property rights.
The duty of furnishing or maintaining lateral support to the adjoining soil in its natural state is an absolute one, and arises out of ownership, or permanent or temporary control, of adjoining land, and this duty may introduce a complicating factor into the situation, even though the land is built upon. Laying aside that possibility, the qualified duty of temporarily maintaining or furnishing lateral support to soil burdened with buildings, does not impose a servitude on the land or limit the owner's right to improve it at will. It does require him, in carrying out his improvements, to use reasonable care and skill, and to that extent it is a limitation on the manner in which he may perform the work of improving his land. It is of course impossible to define in advance what will constitute reasonable care in a given case; but the authorities seem to justify the following general observations. The excavating owner is required in the first place to use reasonable care to find out in advance, or as the work progresses, whether it is liable to cause damage to his neighbor's building; and if so, to notify the owner in time to give him an opportunity to protect the building against damages which cannot be wholly averted by the exercise of reasonable care in the performance of the work. Reasonable care in the performance of the work will generally require no more than the adoption of commonly used and approved methods of preventing the adjoining soil burdened with buildings from moving into or toward the excavation. After due notice the owner of the building must protect himself against risks caused by its additional weight *51 upon the soil, which cannot be averted by such methods.
The defendants' second claim of law, namely, that the plaintiff having timely notice of the character of the work and the methods employed in conducting it, was bound at its peril to protect its own building, is, when thus stated without qualification, a corollary of the defendants' first claim of absolute nonliability, after notice, for failure to support the plaintiff's building. But when it is shown that the defendants' claim of absolute nonliability to support the building is qualified by the duty of taking reasonable care to avoid inflicting unnecessary harm, it follows that the defendants' correlative assumption as to the plaintiff's absolute duty to protect its building is subject to a corresponding qualification. Otherwise the defendants might rid themselves of the duty of excavating carefully, by merely giving notice that they were going to excavate.
"It is apparent that by giving the notice, a person excavating cannot relieve himself of any portion of the prudent care with which he must have conducted the work in the absence of the statutory provision requiring notice." Aston v. Nolan,
This, we think, expresses the just and necessary result of the joint operation of the two rules involved. It leaves the excavating landowner, so long as he does not cause his neighbor's soil to settle of its own weight, free to use his own land for any lawful purpose, subject only to the common duty of taking reasonable care to avoid inflicting unnecessary harm; and it requires the owner of adjoining buildings to protect them only to the extent that he may not reasonably expect the excavator to do so.
The trial court charged the jury with precision as to the relative rights and duties of the parties, saying, throughout the charge, that the defendants would be liable "only in case it appeared that they were negligent in the conduct of the work," and that the duty of the plaintiff was "to take all necessary measures to protect its building from the probable consequences of the excavation when done in an ordinarily careful manner, but it was not bound to guard against damage from the negligent acts of the defendants in the conduct of the work, of which it had no knowledge." Under these instructions the jury has found the defendants negligent and the plaintiff not negligent. It is said that the latter finding is inconsistent with *53 the proof that the plaintiff's general manager knew of the character of the excavation, its proposed location in the highway, and saw the methods employed by the defendants in carrying out the work. But it does not follow that he was bound to anticipate danger unavoidable by the exercise of reasonable care. Apparently none of the experienced contractors and engineers who testified, regarded the work as inherently dangerous to the plaintiff's building. Besides, the record shows that there was evidence from which the jury found as a fact that the work could have been performed without injury to the plaintiff's building, had the defendants used reasonable care in conducting it. Under these conditions it cannot be said that the plaintiff was negligent as matter of law in not taking steps to protect its building. The condition here is quite different from that in Huber v. Douglas, Inc., where the undoubted fact of critical danger was made known to the plaintiff, and it was said that he would have been required to take steps to protect his building had not the contractor undertaken to protect it for him. Even in such a case, if the danger were irreparable and due entirely to the contractor's previous negligence, he could not shift the responsibility for the consequences upon the owner of the building.
In this case the jury might reasonably have found that the danger to the building was not apparent to the plaintiff until it began to settle and crack, and that it was then too late for the plaintiff to take effective steps to protect it.
The foregoing discussion of the law covers all the assignments of error in the charge of the court except one which challenges the correctness of the measure of damages adopted, i. e.: "the resulting depreciation in the value of the property." This is the usual *54 rule of compensation for wrongful injury to property, and we see no reason why it should not be applied in this case.
The defendants assigned as error the refusal of the trial court to submit to the jury certain special interrogatories which they offered for that purpose. The number and form of such interrogatories rest largely in the discretion of the court. Freedman v. New York,N. H. H.R. Co.,
The remaining eighteen assignments of error relate to rulings on evidence. We have examined themseriatim; they deal for the most part with such questions as the order of proof, the materiality of collateral facts, the sufficiency of the identification of exhibits, the limits of cross-examination, and the admissibility of leading questions. The admission of evidence as to overhead charges was harmless, because no claim was based on it, and none could be under the charge of the court. The same is true as to the testimony of the original cost of the building; besides, its original cost was one element in a familiar method of ascertaining present value. We find no error in the rulings on evidence.
There is no error.
In this opinion the other judges concurred.