Dixon v. Wilkinson ( 1875 )

If a man digs upon bis own land, and uses such care as an ordinarily prudent man would use in making excavations and building his walls, he is not liable to an adjoining lot-owner, whose house has been injured thereby.

STATEMENT OE THE CASE.

The defendant owns a lot of land in the city of Washing» ton adjoining the lot of plaintiff, and the latter has brought this action to recover damages for an injury occasioned by the defendant digging his said lot and removing the earth which sustained the foundations of the plaintiff’s house carelessly and negligently, by reason of which the side of his said house dropped down, cracked and injured the walls, doors, floors, windows, and roof, to his damage," &c.

Upon the trial of the cause, the plaintiff introduced evidence tending to prove the issue on bis part, and the defendant having introduced evidence to show that in making the excavation and in building his walls he had used reasonable precaution to prevent injury to the dwelling of the plaintiff, and the case having been argued to the jury by the counsel for both parties,, and the court having charged the jury, the counsel for the defendant asked the court to further charge that,-u if they find from the evidence that the excavation of the defendant was entirely within his own line, and he used such care as an ordinarily prudent man would have used in making his excavation and building his walls, the plaintiff is not entitled to recover.” And asked the court to furthgr^charge the jury, £cif they find from the evidence that the excavation of the defendant was entirely upon his own land, and that the building.of the plaintiff was over defendant’s line, and the defendant had so notified the plaintiff and required him to remove it, the plaintiff is nob entitled to recover for any injury to his house, unless the jury find that the defendant was guilty of gross and wanton negligence in making his excavation and building his walls.” And asked the courl^fofcurtbej) charge the jury, “if they ñnd from the evidence that the defendant’s excavation was entirely within his own line, and that he used such precautions as an •ordinarily prudent man would have taken to prevent injury to the house of the plaintiff, but, in consequence of bad weather, a portion of the foundation was thrown down, and the crumbling of the earth caused a settling of the plaintiff’s bouse, the defendant is not liable for any damage occasioned thereby; ” which several instructions the court refused to give, and the defendant’s counsel excepted to the refusal to charge as requested, and also to the charge as given; and there being a verdict, in favor of the plaintiff, the case comes here upon the exceptions just mentioned by the appeal of the defendant.

The court in general term were unanimously of opinion that the exceptions were well taken; and that the instructions asked for on the part of the defenda nt correctly expressed the law to be given to the jury. It follows that the verdict must be set aside and a new trial granted.