Gilbert v. Woodruff

40 Iowa 320 | Iowa | 1875

Miller, Ch. J.

I. The first assigned error, urged in argument, is based upon the refusal of the court below to give certain instructions to the jury, asked by defendant.

These instructions, in substance, asked the court to charge the jury that in the erection of his building by the plaintiff it was his duty to build the wall, which stood on the line between his premises and those of the defendant, not only of sufficient height and strength, but also to so place it on such solid bearings and base, as would make it sufficiently substantial to sustain the building the plaintiff then erected thereon, as well as the one that was erected on defendant's lot afterward, and that, unless he did so, and the injury to the plaintiff’s building was caused solely by the fault and negligence of the defendant in excavating for his building, plaintiff was" not entitled to recover.

It may be admitted that, in the erection of a party wall under chapter 10, of title 13, page 269, of the Code, it was the duty 1. party wail: wliatisrequir-ed for. of the plaintiff to so construct it as to be sufficient , , ,, „ and proper, tor the purposes oí a party wall between plaintiff’s building and one to be erected by the adjoining proprietor of similar size and. character to that erected by the plaintiff. See Cutter v. Williams et al., 3 Allen, 196. But clearly it would not be his duty to make the wall of sufficient strength, etc., not only for his own building, but also for any character or size of building that the adjoining proprietor might wish to erect.' For example, if the plaintiff, as in this case, wished to erect a building to be used as a store, etc., he would not be required to make the partition wall of strength sufficient to sustain, in addition to his own building, one subsequently erected by his neighbor to be used as a mill, grain warehouse or other purpose, requiring much stronger walls than are needed for a store. The instructions asked were vulnerable to tills objection, and were for that reason properly refused.

II. The instructions refused contained also the doctrine of contributory negligence, and although not objectionable per-

• haps in this respect if the doctrine applies at all in the case, yet the charge of the court fully covered this point in the seventh, eighth, and ninth paragi*aphs of the charge.

III. So, also, with respect to the refusal of the court to give the fifth, sixth and seventh instructions asked by the defendant, 2. instbuc-genoe'.nesI1 the fifth and seventh are fully covered by the charge of the court, and the sixth was properly refused because it undertook to decide the question of negligence, which was one of fact for the jury.

IY. It is next urged by appellant’s counsel that the verdict is not sustained by the evidence, and is contrary to the instructions of the court. Upon reading the evidence we find that although conflicting it is sufficient to sustain the verdict.

Having noticed all the alleged errors presented in argument and finding no error, the judgment must be

Affiemed.