Irvine v. Smith

The right of the plaintiff in this action to recover depended upon questions of fact which were very properly submitted to the jury under instructions from the court.

A careful examination of the evidence shows that the plaintiffs’ building was finished in May, 1897, and the evidence in relation to its construction, which is practically uncontradicted, shows the same to have been built in a substantial and workmanlike manner. In March, 1898, the city, by its contractors, made certain excavations for a subway aloug the line of the plaintiffs’ building to a depth of thirty to thirty-five feet and within twenty inches of it. It was distinctly testified to by both James J. Ryan and Robert Bowers, who were carpenters and builders of upwards of thirty years’ experience, that the usual and ordinary methods adopted in order to protect the foundations of adjoining buildings were not adopted by the contractors. This was, however, denied by, the defendants and the question of negligence was therefore submitted to the jury.

The proper measure of damages was the actual damage done to plaintiffs’ property, to which the jury might add compensation for the delay in the payment of the same. No one contends for a moment that the plaintiffs were entitled to interest, and the jury were so instructed by the court in his charge to them. It was then the province of the jury, under such instructions, to find from the evidence whether or not the defendants had been negligent in their manner of doing the work, and having done so to render a verdict in accordance with the evidence.

Judgment affirmed.