Kerr v. Milwee

²³⁷ Henderson J., delivered the opinion of the Court. This appeal is from a judgment for the defendants upon verdicts directed by the court at the close of the plaintiff’s case. The action was for damages for breach of contract and for negligence, in separate counts, caused by the backfilling of earth against the foundation wall of a house in process of erection upon the plaintiff’s land. It appears that in the fall of 1949 the plaintiff, a sheet metal worker, undertook to build a house upon his lot, acting as his own architect and builder.

He made the excavation for a cellar and poured the concrete footings for the foundation walls, but did not lay the cellar floor. In the spring of 1950, he erected foundation walls of concrete and cinder block, and laid the first floor joists and the subflooring. Work was then suspended and the whole covered with tarpaper and boards. In April 1951 he got in touch with Mr. Milwee, the owner of a bulldozer, and told him he wanted to have the trench outside the walls filled in and the lot graded.

Milwee and the plaintiff met on Sunday and looked the ground over; there was water in the cellar and mud in the bottom of the trench. The plaintiff showed him what he wanted done and they agreed upon the price. Milwee said he would send his operator, Bragg, over with the machine the next day, and inquired if anyone would be there to show the man what was to be done. The plaintiff said that he would be there.

The operator came about 1:30 P.M. on Tuesday and Kerr showed him what he wanted done. It was raining. Bragg made a “couple of passes”, but said the bulldozer blade was not working right, that he would have to have it repaired and return the next • day about 10 A.M. When the plaintiff arrived about 9:30 A.M. the backfill had been completed and the rear foundation wall was cracked. There had been no crack in the wall on the previous day.

He said to Bragg, “You must have hit that wall.” Bragg denied that he had hit it. Kerr testified that there was a red paint mark at the corner of the wall. There was no ²³⁸ testimony as to the color of the bulldozer. Kerr also testified that he examined and measured the treadmarks of the bulldozer, but admitted there was no mark closer .to the wall than 28 inches at any point, although he said the marks were about 12 to 14 inches at one corner.

Ernest Yolk, a bricklayer, testified that he checked the rear wall and it had been pushed out of plumb, “it leans in below grade level and it leans out above grade level.” There was a long horizontal crack. Charles Kellner, a contracting engineer called by the plaintiff as an expert, testified that it is not a safe practice to backfill until a house is erected, since the weight of the house would in crease the wall’s stability, or unless the wall is supported by' some mechanical means, such as shoring or propping. He denied that the crack could have been caused by ice or action of the elements; in his opinion the crack was caused by an external force. He testified: “We wouldn’t even put our bulldozers close to a wall of that type unless it was weighted down even under dry conditions.” Under wet conditions, “any load superimposed on top of that soil will be transferred against the wall.” We-think there is no legally sufficient evidence to show that the bulldozer actually struck the wall.

The testimony clearly shows that the crack was caused by the backfilling,