93 Ky. 275 | Ky. Ct. App. | 1892
delivered the opinion op the court.
Appellees, Frederick and Elizabeth Geyler, husband and wife, being joint owners of a lot of land on Main street, Covington, erected thereon a brick dwelling house, the north wall of which was three inches from their line, and under which was a cellar seven feet in depth, though dug only five feet below surface of the ground.
Subsequently, appellant, the City of Covington, being owner of an adjacent lot, made a contract with appellant Eisele for construction of an engine house thereon, under which was to be a cellar seven feet below surface of the ground and excavated up to the north line of appellees’ lot.
Appellees brought this action against them jointly for damages, it being stated substantially in their petition that Eisele, under direction and supervision of the agents, employes and officers of the City of Covington in excavating the cellar for said engine house wrongfully and with willful negligence, and without knowledge of appellees, dug below and along their wall, the entire length of the north edge of their lot, undermining the foundation of their house, and, for a long space of time, left the excavation uncompleted, whereby their north wall settled, and the whole house dropped and leaned northward, the walls being cracked, window sills broken, etc.
The first question naturally arising on this appeal is, whether the City of Covington can be made liable at all ? In Robinson, &c., v. Webb, 11 Bush, 464, where the action was like this for damages on account of injury to adjacent lot against the owner and building contractor
It is not stated in the petition in this case that Eisele, the contractor, was unskillful in performance of the duty he undertook, nevertheless, it seems to us his relation to the City of Covington can be hardly regarded that of an independent contractor. Eor it is not only alleged that he was under direction and supervision of the agents, officers, and employes of the City of Covington, but it was in terms stipulated in the contract between them, that the work was to be done by him “ under direction of the committees of the fire department and public buildings representing the city council of said city, who shall have entire control over the manner of doing or shaping all and every part of said' work.”
Moreover, it was made cause of complaint, that the excavation was extended beyond division line of the two lots, and the strip of three inches between the wall and line removed without consent of appellees, which act involved a trespass that the City of Covington, as well as Eisele acting under its direction and authority, would be prima facie liable for to the extent of nominal damages .at least.
It is well settled that the owner of land has no right to remove or disturb even his own soil-so as to withdraw the
The person who undertook to underpin the north wall of appellees’ building was not appellant Eisele but a stone mason, and it is a material question whether he was employed by them or by the City of Covington. Eor while, as already indicated, the latter was not bound to assume the expense or risk of underpinning or bracing the wall of appellees, still, if it undertook to do so, it was bound to use reasonable skill and care, and if, on account of negligence or want of skill on part of the person employed for the purpose, the injury to appellees’ building occurred, it is liable to the extent of damage thereby done. Whether the building was injured by reason of the want of reasonable skill and care on the part of the person who undertook to underpin and brace the wall, or resulted from the character of the ground, which was somewhat sandy, is, therefore, a question of fact aifecting appellants only in case the undertaking to protect the wall in the manner stated was by the City of Covington or its employe.
It appears that appellees conveyed to the City of Covington the three inches of ground; the consideration or inducement being the building of the engine house wall against and[as support to the north wall of their building, which was finally done, but whether the proposition to convey was before or after the building was injured does not clearly appear. But it was alleged in the rejoinder
The damages which appellees would be entitled to recover on account of removal of the three inches of land, even if done without their consent, would be manifestly inconsiderable, unless such removal or displacement was the proximate cause of the wall dropping or settling, followed by cracking and injuring the building. It is manifest that appellants could not have excavated their cellar up to the division line, which they had the right to do, without a portion of the three inches beyond becoming displaced, and it is extremely doubtful whether appellees’ wall would have stood firm with only three inches clay and sand for a lateral support; and, therefore, the jury should be instructed, more definitely than was done on the trial, that they are not authorized to find damages for injury to the building on account of removal or displacement of the three inches, unless they believe such removal was both the proximate and independent cause of the wall sinking or giving away.
Another ground for reversal urged by appellant is, that both’ appellees were permitted to testify as witnesses on trial of this case. At the common law one, but not both -of them • might have testified, and, consequently, if both
It seems to us very clear that to permit both husband .and wife to testify in an action like this would be in direct conflict with both the language and manifest meaning of •section 606. For whilejthey have an equal and undivided interest in the lot, and the injury to the building thereon of which they complain affected them jointly and equally, still, the testimony of either in this case would be testimony for the other. In our opinion, therefore, it was error to permit both appellees to testify in this case.
Judgment reversed and cause remanded for new trial consistent with this opinion.