Cooper v. Altoona Concrete Construction & Supply Co.

Citations

• 231 Pa. 557
• 80 A. 1047
• 1911 Pa. LEXIS 886

Syllabus

<p>Appeals — Assignments of error — Unnecessary assignments.</p> <p>1. Assignments of error should be confined to the substantial and material questions necessary to a proper determination of the issues in controversy. Two assignments should never be made when one will cover the ground.</p> <p>Lateral support — Promise of care — Charge of court.</p> <p>2. In an action to recover damages for injuries to a building resulting from an excavation made by the defendant on an adjoining lot, where it appears that the defendant before he made the excavation promised that he would be particularly careful and guard plaintiff’s wall, such promise is no justification for an instruction to the jury that the law would impose on the defendant the duty of unusual caution and care in making the excavation.</p> <p>3. An owner of land cannot disturb the land of the adjoining owner by withdrawing lateral support, but if he does, the damages resulting will only be for the injury to the land, and not to the building. If the excavator has made a promise to be very careful he has no higher duty to perform than his promise implies, and the law does not impose upon him the duty of unusual caution and care.</p> <p>4. The excavator is not answerable in damages unless the excavating was done in a negligent and careless manner, or unless the plaintiff was misled to his injury by the promise of the defendant to do the work in a particular manner. In either event it is for the jury to say whether under all the facts and circumstances the excavating was done in a negligent and careless manner, and if so, did the wall fall as a result of that negligence.</p> <p>5. If the excavator changes the plan promised without giving ample notice to the adjoining owner, he takes the chances of having a jury say he was negligent under the circumstances.</p>