184 Iowa 1041 | Iowa | 1918
In this action, plaintiffs allege that the fall of the party Avail and the resulting injury to their property were caused by the act of the defendants in removing the support of such Avail and undermining it, and in failing to use reasonable and proper care to perforin the Avork in such manner, as not to imperil or injure the adjoining property of the plaintiffs.
The defendant Goldheim denies that he is justly chargeable with negligence or want of reasonable care in the manner of doing the work, or that the fall of the Aval] Avas due to any fault on his.part. He further pleads that the contract for removing the old building, preparatory to the construction of the neAV one, had been let by him to his codefendants, Renfro & Lewis, as independent contractors; and that he himself retained no control or direction over said contractors, who exercised their own discretion in the employment of help, and in the manner in which the Avork was to be done or accomplished; and that for their acts or omis
There was a trial to a jury, resulting in a verdict for plaintiff's for $2,000; and, judgment having been rendered thereon, the defendant Goldheim appeals.
Appellant’s argument for a reversal is based upon two grounds: First, that the trial court erred in overruling defendant’s motion for a directed verdict, at the close of all the evidence; and second, that the trial court erred in its charge to the jury.
I. The first assignment, more specifically stated, is that the measure of defendant’s responsibility or duty in the premises ■ was reasonable care to avoid injury to plaintiffs’ property, and that the evidence not only fails to show any failure or neglect on his part in this respect, but affirmatively establishes his due care, as a matter of law.
Assuming, for present purposes, that plaintiffs’ right of-recovery rests upon proof that the fall of the party wall and the injury to plaintiffs’ property were occasioned by the negligence of the defendants in wrecking the Goldheim building, and in excavating the soil adjacent to the wall, we are quite clear that the testimony, as a whole, was sufficient to carry that question to the jury. Without attempting to recite the testimony of individual witnesses, it may be said that there was evidence tending to show that the taking away of the appellant’s building left the party wall,' 12 or 13 inches in thickness, 60 feet in length, and 38 feet in height, without any support, except such as inhered in the nature of its own materials and the manner of its construction, and except such as it received from its connection with the plaintiffs’ building. It appears that appellant’s building was the first erected, and that the party
The theory of the appellant in this exception is that Benfro & Lewis were independent contractors, for whose negligence, if any, the appellant was not liable. The instruction was not erroneous. The work done by Benfro & Lewis was performed under a written contract, by which they undertook to “superintend” and to “superintend and
III. The court’s charge to the jury is founded on the theory that proof of negligence on the part of defendants was essential to plaintiffs’ right of recovery, and that such recovery could not be had for any negligence other than was specifically charged ixx the petition. The juiw was also told that the mere fact that the building or wall fell, would not, of itself, jxxstify a finding of negligence oxx the part of the defendants, xxor would defendants be liable in damages if plaixxtiffs’ bxxilding collapsed because of its weak or defective condition, nor if it fell from any cause other than the negligence charged. The coxxrt further charged that defendants had a light, to excavate and to dig under the pax’ty wall if, ixx so doing, they exercised reasonable care in the. manner of doing the work. In all this, we think it evident that the appellant has no ground of complaixxt. Oxx the contrary, the charge was very favorable to the defense, and strictly in accord with the general rules of law which his counsel cite and reply upon in the presentation of the appeal to this court. Assuming, as we mxxst, that the jury gave
To avoid any misunderstanding of this decision as a precedent, we think it proper to say that the cases and authorities cited and relied upon by the appellant, nearly or quite all of them, have reference to the right of lateral support where the land upon one or both sides of the partition line is in its natural condition. That rules applicable to such a situation are subject to very material modification, where the owners on both sides have erected buildings separated only by a party wall which both have utilized, is well established; but, in view of the fact that the case seems to have been tried without any^ special reference to the distinction which we have suggested, we shall not now attempt to discuss it or define its proper limits. See Starrett v. Baudler, 181 Iowa 965. See also, Eno v. Del Vecchio, 6 Duer (N. Y.) 17; Partridge v. Gilbert, 15 N. Y. 601; Brooks v. Curtis, 50 N. Y. 639; Webster v. Stevens, 5 Duer (N. Y.) 553; Dowling v. Hennings, 20 Md. 179; Stevenson v. Wallace, 27 Gratt. (Va.) 77; Bradbee v. Mayor, 4 Man. & G. 714; Miller v. Brown, 33 Ohio St. 547. And see the very thorough annotation of cases bearing on rights in party walls in Bloch v. Isham, 92 Am. Dec. 287, 289, 305; also, in Dunscomb v. Randolph, 89 Am. St. Rep. 915, 924, 945, and Walker v. Strosnider, 21 Ann. Cas. 1. Tt is further to be remembered that, in this stqte, we have a statute regulating party walls, and. to some extent defining the rights of adjoining owners therein.
The record in this case discloses no error to the prejudice of the appellant, and the judgment below is — Affirmed.