14 Mo. App. 74 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The petition in this case alleges that the plaintiffs were copartners as builders; that on September 13, 1880, a building owned by the defendant, on his lot in St. Louis, was nearly destroyed by fire; that before October 18, 1880, plaintiffs had contracted with one Thompson to erect for him a building on a lot immediately adjoining that of defendant, and to furnish the material for the same; that plaintiffs were erecting this building and working upon it with their employees on October 18, 1880; that the north wall of defendant’s building on the adjoining lot, owned and occupied by defendant, was left, standing in a dangerous condition from the date of the fire by the carelessness and negligence of defendant; and that on October 18th, without any fault of plaintiff, this wall fell upon the building, Avhich they Avere erecting, and crushed in its walls, and knocked down and destroyed the bricks of which they were composed; that the joists and timbers used in the construction of said building were thereby broken and damaged, and lumber, windoAV frames, sash, door frames, and doors, used and to be used by plaintiffs in the construction of the building, and also other building material belonging to plaintiffs, were thereby broken and destroyed to the damage of plaintiffs, $500. That, by the falling of this wall a great quantity of brick, mortar, and rubbish ivas thrown upon the building being erected by plaintiffs, causing them a damage of $200 for expenses in removing the same; that by their contract with Thompson, plaintiffs were bound to have the building, which they Avere erecting for him, completed by a day fixed, or, in case of failure, to forfeit to him a large sum of money for each day that said building remained unfinished after the day named in the contract for its completion ; that, by
The plaintiffs introduced evidence tending to show that defendant owned a five-story building in St. Louis, with a high gable, and that one Thompson owned a building adjoining, on the north. The wall between the buildings was a party wall, up to the height of Thompson’s building, which was two stories lower than that of defendant. These two buildings were partly destroyed by fire on September 13, 1880. The north wall of defendant’s building was left standing in a dangerous condition. Thompson, immediately after the fire, made a contract with plaintiffs to restore his building complete, as before the fire, for $6,000; the building to be completed by a day named, and plaintiffs to forfeit $10 a day for all delay in completing the building after that time. Plaintiffs at once set to work on the Thompson building. They repeatedly called defendant’s attention to the dangerous character of the wall. The wall was highly dangerous and liable to topple at any time. Plaintiffs’ workmen, on some occasions, left their work on account of this. Defendant repeatedly promised to remove the wall, and admitted that it was dangerous,' but nothing was done about it. Plaintiff Benjamin Lynds says, that he thought that when the wall fell it would fall south, away from Thompson’s lot. On October 18th, the gable and upper part of defendant’s wall fell into the Thompson lot, breaking off at a point twenty feet above the line at which
1. Respondent contends that this is an action for trespass upon real estate, and that, as plaintiffs had no estate or title in the realty claimed to have been injured, and as they wei’e not in possession, or proprietors in any sense of the term at the date of the accident, there can be no recovery in this action.
It is true that the action of trespass lies only in favor of the person in possession of the realty at the time the trespass was committed ; but this principle does not seem to be decisive in the present case. The question is not as to the common-law form of action, but, whether, upon the allegations and proofs, a case is made out of a wrong done to plaintiffs by the negligence of defendant for which damages maybe recovered. If plaintiff’s horse, by the permission of Thompson, had been on Thompson’s lot, and defendant’s wall, by the carelessness of defendant, had fallen and killed
2. We do not think that the fact that plaintiffs knew that the wall was dangerous, and nevertheless went on, under their contract with Thompson, to rebuild the house on his adjoining lot, on the faith of defendant’s promises that he would remove the wall, was such evidence of contributory negligence as to warrant the court in taking the case from the jury. Thompson had a right to use his lot, and might lawfully contract with plaintiffs to rebuild; their contract with him compelled them under heavy penalties to proceed with their work. They could not, without committing a trespass, enter upon defendant’s lot to remove his shaky wall, and they seem to have proceeded on the faith of his promise that he would remove it. It does not appear that they could have shored it up, or by any reasonable diligence prevented its fall. The property of plaintiffs was exposed to hazard, according to the testimony, whilst they were in the ordinary exercise of their rights on Thompson’s lot under a license from him, which license was granted to them by Thompson under the ordinary exercise of his rights. After the lapse of a reasonable time to remove the wall, and after due notice, it would seem that plaintiffs might proceed with the building. They took the risk of an injury from pure accident, but not the risk of injury from the neglect of defendant to do his duty by exercising ordinary care not to injure the adjoining property by maintaining a nuisance upon his own lot. Plaintiffs had a right to presume that defendant would exercise ordinary care. Brown v. Lyon, 31 Pa. St. 510.
We think that the judgment should be reversed and the cause remanded.