154 P. 593 | Wyo. | 1916
These cases are docketed as separate cases although they grew out of the same litigation and will be considered in this
“1. Did Charles Goodrich-and Frank Windom have a contract with the bank for the erection of the new bank building? No.”
“2. If your answer to the above question is ‘yes,’ state whether the making of the excavation on the bank’s lot was included in the terms of said contract.” No answer.
“3. Did the bank have any control of the mode or manner in which said Goodrich and Windom were to do the work, other than to accept or reject the work as being in compliance or non-compliance with the terms of the contract? Yes.”
“4. Were the plans and specifications for the bank building sufficient to secure a safe construction of said building, including the making of the excavation? No decision.”
“5. Were Goodrich and Windom careful .and prudent contractors? No.”
“7. Did plaintiff or her agent, Irad W. Gray, have knowledge of the proposed excavation to be made on the bank’s lot, before said excavation was begun? No.”
“8. Did Mr. Goodrich notify Mr. Gray that they were going to excavate at or about the time such excavation was begun? Yes.”
“9. Was reasonable and ordinary care used in making the excavation on defendant’s lot? No.”
“10. Would the soil of plaintiff’s lot have slipped and fallen into the excavation if there had been no building erected On'plaintiff’s lot. No.”
“11. If your verdict is for the plaintiff in any amount, please answer the following additional questions:
“(a) What amount, if any, do you allow plaintiff as damages for injuries to her building? $1,240.00
“(b) What amount, if any, do you allow plaintiff as damages for injury to her furniture and fixtures? $500.00.
(c) What amount, if any, do you allow plaintiff as damages for injury to her stock in trade? $3,200.00.
“(d) What amount, if any, do you allow plaintiff as damages for injury to her business? $600.00.”
Of course, if there was no contract with Windom and Goodrich for the erection of the new bank building as found by the jury, they were not independent contractors, but employees merely of the defendant and doing the work under the latter’s supervision. Nor is the mere fact that they were contractors sufficient to give them the character of independent contractors or that they were treated as such unless the contract itself is susceptible of such construction, and even then if notwithstanding the terms of such contract the bank did in fact retain control and supervision of the work, any negligence resulting in injury would be imputable to the bank. The evidence tends to show that Windom submitted a written bid to construct the new bank building in
The lots of the respective parties were adjoining and parallel, running north and south and facing to the north, the Gray 'lot being more particularly described as the west twenty-five feet of the east fifty feet of lots numbered eleven, twelve, thirteen and fourteen, in block numbered sixty-six, in the town of Wheatland, in the then County of Laramie, now County of Platte, State of Wyoming. For many years both lots had been occupied for business purposes and at the time of the injury complained of Mrs. Gray had a one-story brick store building on her lot, the east wall of which was close to the east line of her lot, which was also the west line of the bank’s lot. There was no cellar under and the foundation of the Gray store building was brick and had been built in a trench 12 inches deep and extended 12 inches above ground at the time of its construction. In June, 1912, the bank moved the old bank building from the lot out into and across the street and on July 3, following, commenced to excavate for a new bank building on the lot, which proposed new building, according to the plans and specifications, was to run seventy-five feet parallel, or practically so, with the foundation of the Gray building and to be sunk to the depth of eight feet for "concrete cellar walls and for foundation. The excavation was made by teams, plows and scrapers, and when at the noon hour of July 5, 1912, a depth of about 5 feet had been reached the earth caved from the Gray lot and the
As already stated, the court, at defendant’s request, submitted the following among other interrogatories to the jury, viz.: “6. Was the1 work of excavating for said cellar a work that was necessarily dangerous to plaintiff’s building situated on the adjoining lot?” To this interrogatory the
The fifth interrogatory was directed to the issue as to whether the bank used care or was negligent in selecting its contractors. It was the duty of the bank to select a careful, prudent workman in the line of work involved. Like the sixth interrogatory this inquiry was submitted to the jury at the request of the defendant and it cannot now be heard to complain that the issue was submitted in the form of an interrogatory or that the issue was not within the pleadings.
The jury found, and the evidence supports the special finding, by their answer to interrogatory No. 9, whereby they found that reasonable and ordinary'care was not used in making the excavation, notwithstanding evidence to the effect that Goodrich and Windom had theretofore made the excavation for the Coors building and other buildings in the same character of soil and in the vicinity of and the same as they did in the bank excavation without the soil caving. These cases were not parallel cases to the one here, for there the evidence did not show as it tended to show in this case that the soil was soaked and rendered soft with rainwater from the'roof and eaves of the old bank and Gray buildings, nor the difference in weight of the material of which the adjoining building was constructed. It was proper to take these facts into consideration as bearing on the question of negligence of the contractor or owner in constructing a building or making improvements, and fix
Finding no prejudicial error in the record, the judgment will be affirmed. Affirmed.