149 N.W. 690 | N.D. | 1914
This is an appeal from an order setting aside a verdict and granting a new trial in an action to recover damages for the negligent removal of the lateral support of a building. It would serve no useful purpose to review the evidence. The theory of the plaintiff is that the defendant negligently made the excavation in question, and, by not giving the plaintiff notice of the proposed work, made it impossible for him to protect his building. The theory of the defendant, on the other hand, is that, though no notice Was given, a wall was constructed against the adjoining bank as the work progressed, which gave it all the support that was necessary, and that the real fact was that the building of plaintiff was itself improperly constructed and without any foundation, and that the injuries complained of were occasioned by the defects in the building itself, and were not in any way caused by the negligence of the defendant, or necessarily by the excavation at all. The excavation seems to have been dug in November, and plaintiff himself testifies that there was no sliding of the building until the frost went out in the spring, and, though he testifies to cracks before that time, the photographs which he introduces in evidence were not taken until the spring, and his testimony as to the time when the injuries became apparent is quite confusing.
There is, on the other hand, quite convincing evidence of the poor construction of the building, and of an inferior grade of materials which were used therein. This evidence is also sought to be corroborated by after discovered evidence which is quite convincing, and, though no diligence is shown in the attempt to obtain it, we are not prepared to say that the court in passing upon the motion for a new trial was not justified in considering it, and that the evidence is, as claimed by the plaintiff, merely cumulative. It is, in fact, corroborative rather than cumulative. It is, at any rate, quite probable that this evidence would have a material influence in determining the result upon the new trial, and in such cases the discretion of the trial
The proof of negligence in the case, indeed, is far from satisfactory. We cannot ourselves but be in doubt whether the course pursued by the defendants in making the excavation and in building the supporting wall was not all that could be required or expected, and that the wall was not as serviceable as any protection that the plaintiff himself could have adopted. The only witness of plaintiff upon this specific question is the witness Anderson. Although he testified that the usual procedure in such cases was “to build a false structure and remove it after the wall as you go along,” he also testified that “there might be more than one way,” and that he “did not say that the only proper way to construct a wall in the vicinity of a cement block was to put up false work. Whether a false work is required or not depends upon the soil or the time of the year. The purpose of that retaining or false wall is to keep it from caving. If the earth does not cave, then you do not need the false work. If, for instance, south of the wall I was about to construct, there existed a cellar 10 by 15 feet in length, running parallel with the wall, I feet deep, dug out of the earth, and plastered on the earth and remaining in good condition for years, with no signs of cracks or scaling of the walls, I would say the chances are a wall of that character, in the month of November, would not need a false work to support it. The chances are it was a reasonably compact wall. In order to determine if it was necessary to construct a false wall after starting the excavation, a man must use his judgment as he went along. I was not asked the question whether the making of this wall without false work was negligence. I did not see it built. I don't say that it was negligence. I do not want the jury to understand I did. I do not want the jury to understand that the failure to use false work caused this injury. I did not see the building built, and if I had told them that, it would only have been my opinion. ' I did not examine the foundation inside under the floor. I do not know
It may be conceded that failure to give tbe notice which is required by tbe statute is evidence of negligence. Schultz v. Byers, 53 N. J. L. 442, 13 L.R.A. 569, 26 Am. St. Rep. 435, 22 Atl. 514. Tbe purpose of tbe statute, however, (Rev. Codes 1905, § 4811), could only have been to enable tbe adjacent landowner to take steps for bis protection if bis neighbor failed to do so, and tbe question, after all, is merely whether or not tbe wall that was built did not afford all of tbe protection that tbe “false work,” or any other reasonable method of protection, could have given, and whether tbe injury to tbe building was caused by tbe excavation at all, but rather by its own poor construction. It is, too, very doubtful whether any part of tbe damage complained of was occasioned in tbe fall of 1909 and prior to tbe spring of 1910. It is admitted that plaintiff bad a personal knowledge of tbe excavation within a few days after tbe work was commenced, and, if no damage bad then occurred, in ample time to take steps for bis protection. If such is tbe fact, tbe failure to give tbe statutory notice is by no means decisive of tbe case. 1 Cyc. 780; Novotny v. Danforth, 9 S. D. 301, 68 N. W. 749.
Upon the state of facts disclosed, indeed, this court cannot say that tbe learned trial judge abused bis sound discretion in granting a new trial. Tbe case is not one where a new trial has been refused, and where tbe applicant has been denied any other bearing but upon appeal, nor is it a case where this court upon appeal is asked to set aside a verdict of a jury. Tbe rule, indeed, seems to be well established that tbe granting of a new trial for insufficiency of tbe evidence to support tbe verdict is within tbe trial court’s discretion, unless no conclusion can be drawn from tbe evidence except one favorable to the party for whom tbe verdict was found. Bledsoe v. Decrow, 132 Cal. 312, 64 Pac. 397.
We cannot say that but one conclusion can be drawn from tbe evidence in this case, and that favorable to tbe plaintiff and appellant. After a thorough examination of tbe record, we in fact find ourselves entirely confused as to tbe merits of tbe controversy. Tbe trial judge,
“An examination of the grounds of the application for the order appealed from,” says Mr. Justice Wallin, fn the case of Pengilly v. J. I. Case Threshing Mach. Co. 11 N. D. 249, 91 N. W. 63, 12 Am. Neg. Rep. 619, “will at once develop the fact that the trial court, in disposing of the problem presented upon the application, was not governed by fixed rules of law. . . . When motions of this nature are presented to a court, they are classified as motions addressed to the discretion of the court. In considering the evidence adduced or that newly discovered, no fixed rules of law exist which could be de
The order of the District Court is affirmed.