28 Del. 477 | Del. Super. Ct. | 1915
charging the jury:
Gentlemen of the jury:—John W. Moore, the plaintiff in this action, was, during the month of March, 1914, and still is the owner of a property in this city known as 1303 Vandever Avenue, upon which is erected a six-room brick dwelling house.
One of the defendants, Alfred E. Green, was at the same time the owner of land adjoining the plaintiff’s property on the west.
Plaintiff claims that the said Alfred E. Green and the other defendant during the months of March and April, 1914, while excavating upon the premises of the said Alfred E. Green for the. purpose of erecting a structure thereon, negligently and carelessly and without notice to said plaintiff, dug along and below the foundation wall of the said property of the plaintiff, and did not use proper care and precaution to prevent injury to plaintiff’s property; whereby one of the outer walls of his dwelling house slipped and settled, thereby causing great injury to the walls, floors, windows, doors, and other parts of said dwelling house, so as to render it unsafe and unfit for habitation, to the damage of the said plaintiff to the amount of fifteen hundred dollars.
Defendants claim that before making the excavation complained of, they notified the plaintiff that they intended to make the excavation immediately adjacent to the plaintiff’s wall and to dig out the ground along and below the bed of the foundation of plaintiff’s wall; that while making said excavation and building said adjoining wall they took the usual and necessary precaution against injuring the plaintiff’s property, and did not injure his property; that plaintiff’s wall did not slip because of the excavation made by defendants, and that the damage to plaintiff’s property, if any, was caused by the foundation wall of his house resting upon an insecure bed, defective drainage and by reason of poor workmanship and materials in its construction.
What we have stated to you, gentlemen, are the contentions of the respective parties.to this suit.
This obligation on the person excavating to use ordinar;^ care and skill about his work, is not affected or relieved, by the fact, that the adjoining building was poorly constructed or that it encroached upon the excavator’s land.
If, on the other hand, you should be satisfied from the preponderance or greater weight of the evidence, that the injuries complained of were caused by the excavation on Mr. Green’s land, and are also satisfied that the excavating was not done by the defendants in an ordinarily careful and skillful manner, under the circumstances as proven in this case, then they would be guilty of negligence, and your verdict should be for the plaintiff.
If you should be satisfied plaintiff was notified of the intended excavating in time, and at a time, to allow him to take the necessary precautions to prevent injury to his building, and he did not take any such precautions, nevertheless, if you further believe, that the defendants, after giving such notice, did not do their work in an ordinarily careful and skillful manner, under all the conditions and circumstances of this case, and thereby caused the injuries to the building complained of, plaintiff would be entitled to recover.
If you should believe plaintiff’s building was constructed of inferior materials and by poor workmanship, but also believe that defendants did not do the excavating and attendant work in an ordinarily careful and skillful manner, under the circumstances of this case, as you find them from the evidence, and thereby caused the injuries complained of, your verdict should be for the plaintiff.
This action is based upon the negligence of the defendants;
The defendants were not obliged to take such precautions in prosecuting their work as to prevent the possibility of injury, under all circumstances, to plaintiff’s building, but were obliged to use such care and skill in their work as an ordinarily careful and prudent person would use under all the circumstances of this case.
Your verdict should be for that party in whose favor is the preponderance or greater weight of the evidence.
We also say to you, gentlemen, there has been no evidence to show that one of the defendants, Melvin F. Anderson, had anything whatever to do with the excavating, therefore should your verdict be in favor of the plaintiff, it should not be against him, but may be against the other two defendants.
Verdict for defendants.