155 P. 442 | Utah | 1916
The plaintiff and "the defendant Newhonse Realty Company are the owners of adjoining lots in the business district of Salt Lake City. The plaintiff has a warehouse and meat refrigerator plant on its ground, the north wall of which is near or on the division line, of the two lots. As alleged by the plaintiff, the defendants, in making excavations on the realty company’s property to erect a building thereon, negligently removed earth near and underneath the wall of plaintiff’s building and injured it. Both defendants deny the alleged negligence. The realty company pleaded that its eodefendants were independent contractors who, as such, made the excavations. The Schravens pleaded a counterclaim, in which they alleged that they had notified the plaintiff of their intention to make the* excavations and warned it to protect its building and wall, but that it neglected to do anything in such respect, whereupon the Schravens themselves protected the wall by shoring, bracing, and propping it, for'which they ask.reasonable compensation. The case was tried to the court and jury, who rendered a verdict in plaintiff’s favor for $650 against the defendants Schravens. only. They appeal.
After stating that the plaintiff’s right to recover was predicated on negligence, and after defining negligence, the court charged the jury:
“7. You are instructed that the owner of land can lawfully excavate up to the line thereof, although such excavation may endanger a building situated upon the adjoining land; but it is the duty of the owner before making such excavation to give to the owner of the adjoining land notice of his intentiQn to make such excavation a sufficient time before commencing to enable such person to take such precautions. for the protection of his building as may be reasonably necessary, and it is also the duty of the person making such excavation
“8. You are instructed that where one about to make an excavation notifies the adjoining landowner of such intention, and the adjoining landowner refuses or neglects to take the necessary steps to protect his building, such refusal and neglect does not excuse nor relieve the person making the excavation from the duty of exercising ordinary care, skill, and prudence in making the same; but, notwithstanding such neglect on the part of the adjoining owner, the person making the excavation would be liable for any and all damages which proximately resulted from any acts of negligence" in making such excavations. ’ ’
“11. You are instructed that as a matter of law the defendants J. F. and H. E. Schraven are not, under the evidence in this case, entitled to recover upon their counterclaim against the plaintiff, and you cannot therefore find any verdict for said defendants thereon; and you are also instructed that the plaintiff is not entitled to recover against the Newhouse Realty Company, and you cannot therefore find any vei’diet for the plaintiff against said defendant.
‘ ‘ 12. If you should find for the plaintiff, you should award it such amount as from the evidence you may find its building, together with its refrigerating plant and machinery installed therein, was damaged, by any negligent acts of the defendants J. F. and H. E. Schraven in making the excavation complained of. ’ ’
The only exception to these instructions by the appellants is:
Various other complaints are made respecting certain questions propounded to witnesses and permitting their answers, over appellants’ objections. Some of them are claimed to be objectionable on the ground that the questions “assumed something not proven,” and “something contrary to the facts and existing conditions;” others, that the questions called for, and the answers made thereto were, mere conclusions, etc.; and, still others, that the plaintiff was permitted, on cross-examination, to interrogate one of .the appellants respecting matters contained in the appellants’ contract with the realty company. We have looked into these, but do not find that the court committed error, at least prejudicial error.
The judgment therefore is affirmed, with costs.