47 Ky. 453 | Ky. Ct. App. | 1848
delivered the opinion of the Court.
Stoices brought this action on the 'case to recover damages for the falling of the walls of his house, in the city of Louisville, occasioned, as he ¿Hedges, by the
1. As to the declaration, we are of opinion, that each, count shows' substantially, a good cause of action.. The three first counts, it is true, do not alledge any invasion of the plaintiff’s lot or possession, and admit, by implication at least, the defendant’s right to th,e lot-from, which the earth was dug and removed, and lay the gravamen of the complaint, not upon the digging and, removing simply, but upon its being done in such a-careless and negligent manner, and with such disregard
The fourth count differs from the three first, in stating the additional fact that the defendant, by his agents, &c., dug the earth from under the foundation of the house and from the lot so possessed by the plaintiff. And it is contended that this count must, on the ground of this fact, be regarded as a count in trespass, which cannot be joined in case-, and that for the misjoinder the demurrer to the whole declaration should have been sustained. But we are satisfied that this count is not in trespass. It does not stop with the statement of the defendants digging the earth from under plaintiff’s house and from his lot, and claim damages therefor, but proceeds immediately to say how this was done, viz: in such a manner and so carelessly and negligently as to cause the house to fall, &c. The plaintiff does not complain of a forcible entry on his close, and claim damages therefor. He does not alledge that the act of digging front his lot was unlawful or wrongful, or against the plaintiff’s will, or even wilful on the part of the defendant, but that it was done in such a manner as to cause the damage complained of. And he goes for damages consequent upon the act, not of the defendant himself, but of his agents, &c-., for which the defendant would not be answerable in trespass, unless he had directed or authorized it. Besides the words “in such a manner,” &c., qualify not only the digging under the plaintiff’s
3. The evidence of the probable cost of rebuilding the wall, was admissible as one of the elements which might be taken into consideration in estimating the damages sustained by the plaintiff from the falling of the old wall, if the loss of the wall was not otherwise supplied. But as the old wall was exceedingly weak and defective-, and as by the erection of a new wall the house would be put in a much better condition than be» fore, it is clear that the cost of a new wall could not form the proper criterion, nor in fact any criterion for determining the loss of the plaintiff. The Court, therefore, erred in the remarks to the jury on this subject, importing that there could not be a better criterion, under the circumstances, to ascertain how much it would take to put the plaintiff in as good a condition as before. And moreover, if in point of fact the plain» tiff’s house was put in as good or a better condition than before, without the cost of building a new wall, but by the use of the defendant’s wall, as is estimated by the evidence, the cost of a new wall had nothing to do with the estimation of the damages, but rather the cost, if any, of the accommodation afforded by the defendant. The error on this point, is deemed substantial and prejudicial.
3. We are of opinion that upon the question of reasonable care in digging the defendant’s cellar near the plaintiff’s house, it was admissible to prove what was usually done by builders in digging cellars under similar circumstances. But we are inclined to the opinion that the remarks of the Court upon this subject, were calculated to produce upon the minds of the jury the erroneous impression that the evidence adduced by the plaintiff had established, or might establish the standard of care and diligence for this case. We are also of opinion that the evidence should have been confined to what was usual in cases exactly similar to the one on trial, and to the manner in which cellars are usually dug out in such cases. The charge is, that the defendant, by his agents, so carelessly and negligently dug and removed the earth, &c., and with such disregard of the plaintiff’s safety, as to cause the plaintiff’s house to fall. Usage, and even the opinions of skillful men may be admissible as to the manner of digging and removing the earth, &c., but they are not admissible as to the duty which the defendant owed to the plaintiff beyond what was involved in the manner of digging and removing the earth, 6z;c.
4. We do not feel authorized, upon the state of the record before us, to enter upon any comparison of the verdict with the evidence. But we remark, as belonging to the principle on which the action is founded, that in, order to impose upon the defendant the duty of using any extraordinary means for the protection of the plaintiff’s house, it must have been apparent, upon common observation, that the digging of his cellar would probably cause the house to fall. And certainly he should not be subjected to damages for failing to use extraordinary precautions, unless it is reasonably certain that the digging of the cellar did actually cause the destruction of the house, and especially as another cause, deemed by many to have been adequate to produce the effect, is. proved to have existed. With regard to the duty of the defendant: It is said by Chancellor Kent, (3 Com. 437, 2d edi.) “If the owner of a house in a compact town finds it necessary to pull it down, and remove the foun
In this case, 'the defendant’s lot and cellar did not, as stated in the declaration, adjoin the plaintiff’s house, but there Was 'an alley of between two and three feet between them, which did not belong to the defendant. •j''Unless'the nature of the intervening earth was such as l'to render it highly''probable that it would give way . Upon the cellar being dug out, and thus cause the plain-I tiff’s house to fall, there could be no obligation on the defendant to take any precaution, except that he should •y not disturb'or break down the'alley. If, as we assume, he had a right to dig his cellar to a proper and convenient depth, he cannot be responsible, except for the r consequences of neglect in digging. Nor was he bound to anticipate and provide against a possible danger, which the plaintiff, with notice of the facts, did not con- - sider probable. It cannot be admitted that the sole res- | ponsibility for all consequences devolved upon the deJ fend ant, who was in the exercise -of his undoubted right upon his own land. The plaintiff knew what was doing Ton the defendant’s open lot, 'and may be assumed to have known better than the defendant, the weakness of his own wall and of its foundation. If he might remain passive, without taking or suggesting any measure . for'the safety of his house, and hold'the defendant responsible for not taking measures to support it, it seems to us that such responsibility should rest upon some peculiar ground of right on the one side, or duty on the other, which ought to be clearly set forth in the declaration, and satisfactorily established by the proof. Unlless the plaintiff was entitled to have his house supported, not only by the alley, but by the compact earth on the defendant’s lot adjoining the alley, the mere removal of that earth was not a breach of duty in the defendant.. And in that case, he could not be said to have caused
Wherefore, the judgment is reversed, and the cause remanded for a new Arial..