12 Colo. App. 245 | Colo. Ct. App. | 1898
The appellants were plaintiffs, and the appellees, defendants, below. The complaint alleged that about March, 1889, the defendants Rhodes and Marks, and one Rice, constructed a two-story building, known as the “ Exchange block,” in the city of Pueblo; that they purchased an interest in the wall of an adjoining two-story building, and used it as a party wall; that this wall rested merely on the surface of the ground, and was without sufficient thickness for a party wall, and was defective in construction: that in June, 1892, the defendant Fitch purchased the interest of Rice in the Exchange block ,- that in March, 1893, the plaintiffs leased Rom the defendants three rooms in the second story of the Exchange block, for the purposes of a job printing businessthat the wall and basement of the building were in the possession and general control of the defendants, and that the plaintiffs had no access thereto, and had no knowledge of the structure or condition of the wall; that the building was defectively erected, and the wall kept and maintained in a defective and unsafe condition, and allowed by the defendants to become and remain out of repair; that when the defendants leased the rooms to the plaintiffs, the building, by reason of the defective and dangerous condition of the party wall, was, and until its fall remained, defective, insecure and dangerous; that the defendants fraudulently and negligently concealed its defective and dangerous condition from the plaintiffs, and failed to notify the plaintiffs that it was defective or dangerous; that the defendants knew the condition of the wall and building, or could have known it, by the use of ordinary diligence, and that it was unknown to the plaintiffs; and that in consequence of the negligence of the defendants, the wall gave way on July 27, 1893, and the building fell and caved in, injuring an<J destroying the property of the defendants, contained in the leased rooms.
Upon the evidence introduced by the plaintiffs at the trial, judgment of nonsuit was, at the defendants’ instance, entered against them, and they appealed.
If there was enough in this evidence to sustain a verdict against the defendants, the case should have been submitted to the jury, and the nonsuit was improper; but if there was not, there was nothing to submit, and the court only performed its duty in entering the judgment. We must therefore see what the evidence was.
It conclusively appears that when the building was wrecked, there was a flood, which, coming over the low ground, penetrated the cellar of the adjoining building, called by the witnesses, “ the Merrill building,” from the rear, and filled the cellar to about three fifths of its height. For some reason no water ran into the basement of' the Exchange block. After the water had come into the Merrill cellar, and had risen to the height mentioned, a portion of the division foundation fell outwards into the basement of the Exchange block, causing the collapse in consequence of which the plaintiffs’ dam
If, upon this evidence, a jury had found that there were defects in this wall, resulting from careless or improper construction, although the proof is far from satisfactory, we are not prepared to say that we would disturb their verdict; but the question of the liability of the defendants for the damages
But we do not agree with the learned counsel for the defendants that the evidence shows that this foundation wall was as well open to observation and judgment by the plaintiffs as by the defendants, or that a want of-knowledge of its condition is chargeable to the plaintiffs as negligence. Where, as in the case of Davidson v. Fischer, supra, a lease is taken
Having said thus much by way of preface, we are now to see whether in this case the evidence disclosed any fact upon which a liability of the defendants for the loss sustained by the plaintiffs, may be predicated. It appears from the pleadings that the wall in question was not constructed by the defendants. Two of them, in connection with another person, purchased an interest in it, after its erection, for the purpose of using it as one of the walls of a house to be built by them, and the other bought that person’s interest in the house after it was completed. Therefore the presumption of knowledge in them of the manner of the construction of the wall, which might arise from its erection by themselves, does not exist, and there is not a word of evidence that they ever derived such knowledge from any other source. Without actual knowledge there could be no fraudulent concealment, and the' only ground upon which a right of recovery against them could be based, must be a neglect, on their part, to ascertain the condition of the wall, and report it to the plaintiffs. Failing to discover what, by the exercise of rea
The condition of the brick wall which rested on the stone foundation is not in question. A witness who examined the premises after the wall fell, said that the bricks looked soft. This is hardly evidence that they were soft, and there was no evidence that the appearance of the wall when standing, indicated any insufficiency in the brick. But it is evident from the entire testimony that the cause of the collapse was the giving way of the stone foundation. If that had resisted the pressure, there is no reason for supposing that the entire wall would not have stood for an indefinite time. If faulty construction was responsible for the accident,' the fault was in this foundation; and as the plaintiffs’ damage would not have been sustained if the foundation had not broken, whatever negligence may be chargeable to the defendants, must be negligence in not discovering the weakness of the foundation. As the plaintiffs sustained no injury in consequence of any defect in the brick wall, it is immaterial whether the-bricks composing it were hard or soft.
Now the evidence falls considerably short of establishing that this foundation was not as well built as such foundations usually are. While, if the only question to be submitted had related to its actual sufficiency, a verdict that it was insufficient might have been suffered to stand, yet the rincertainty in which the evidence left that question, has an important bearing upon the other question, whether it carried such appearance of insufficiency as would charge the plaintiffs with
We are unable to find in the evidence the existence of a single condition which would impose upon the defendants a liability for the damage sustained by the plaintiffs. No misrepresentation, no concealment, nothing in the nature of fraud, appears, and upon the facts shown a charge of negligence cannot be based. When the motion for a nonsuit was interposed, there was nothing for the court to do but sustain it, and there is nothing for us to-do now but affirm the judgment.
Affirmed.