58 A. 19 | Md. | 1904
This is an action of tort, brought by the appellants against the appellees to recover damages for injuries to the appellants' house, occasioned by the alleged carelessness of the appellees. It is alleged in the declaration that the appellees while engaged in removing a building adjacent to the property of the appellants, "willfully, carelessly and in an unskillful and unworkmanlike manner, negligently and wrongfully tore down and removed a building adjacent to the property of the said plaintiffs, and then and there excavated and went below the foundation walls of the plaintiffs' property, without notice to said plaintiffs, and that by reason thereof the property of the plaintiffs was structurally weakened and said property collapsed and fell in, c."
The defendants plead the general issue; and the judgment being for them, the plaintiffs appealed.
The proof shows that on Friday, the 16th of May, 1902, *567 the appellants were notified by Mrs. Schlutter, the owner of the property about to be improved, that they "could not go ahead with their work, without underpinning her property." At that time the Schlutter building was entirely down, and an excavation or ditch had been dug for the walls of the new structure, along and below the foundations of the walls of the appellants' house. Mrs. Samuel on the same day entered into an agreement with the defendant Novak, in which the latter agreed for a consideration of fifty dollars to do the work of underpinning the walls of the appellants' house and to proceed with the work on the Monday following. Novak however, did not begin this work until the following Tuesday. At the time this agreement was made, the walls of the Schlutter building were entirely down, and there were no props, braces or other precautions to protect the wall on the adjoining property, except "a narrow board extending midway across the Schlutter lot." There was evidence offered, tending to show that it was a custom among builders, while tearing down a building "similar to this," to protect the wall on the adjoining property by the use of props and braces; and the fall of the appellants' wall, was caused by the excavation upon the appellees' lot.
The Court granted two prayers, both offered by the defendants. The appellants asked no instructions.
One of the granted prayers of the appellees instructed the jury that "by the theory of the plaintiffs' case," that is, (as we construe the phrase) if they found that the injury to the appellants' property was occasioned by the failure of Novak to properly perform a contract entered into between the plaintiffs and Novak for the protection of their property, their verdict must be for Novak.
The hypothesis upon which this instruction is based requires that the jury shall find, as the condition of Novak's liability, that the injury was caused by his failure to perform his contract to underpin the plaintiffs' wall. If this were found to be the cause of the injury, and not the negligence of the defendants in making the excavation, then it seems to be *568
clear that the only cause of action the plaintiffs would have, would be against Novak for a breach of the contract in not properly performing the work of the underpinning, and not for negligently making the excavation. Upon the hypothesis of this prayer, no recovery could be had against Novak, except upon an action ex contractu for a breach of his contract. "It is impossible," said this Court, "to disregard the substantial principles which underlie our system of jurisprudence and to some extent govern the forms of action. These principles must still be recognized, however the new form may be changed or simplified."Stirling v. Garritee,
This instruction was therefore properly granted.
By the other prayer, the case was taken from the jury, so far as concerned Dora J. Schlutter. They were directed to find for her, "because it appears from the plaintiffs' case the work of excavation on the defendants' lot was wholly committed by her to an independent contractor; that the injury to the plaintiffs' house was not reasonably to have been anticipated as the probable consequence of the excavation, but was caused by the negligence of the independent contractor."
This prayer makes two assumptions of fact, viz: That the injury to the plaintiffs' house was not reasonably to have been anticipated as the probable consequence of the excavation, and that it was caused by the negligence of the independent contractor; and from these two facts, because the work of excavation was committed to an independent contractor, the jury are instructed to find for the defendant Schlutter.
The obligation of the owner, in cases of this kind, is fully laid down by this Court in the recent case of Bonaparte v.Wiseman,
For error in granting the prayer last referred to, the judgment will be reversed and the cause remanded for a new trial.
Judgment reversed and cause remanded for new trial.
(Decided June 8th, 1904.)