Plaintiffs’ Appeal.
Devin, J.
Plaintiffs’ appeal involves only tbe rulings of tbe court relating to tbe issue of damages. They excepted to tbe admission of certain evidence as to tbe repair of tbe damaged building, and also to tbe charge of tbe court on tbis point, and to tbe refusal of tbe court to state tbeir contentions in tbe form requested. An examination of tbe record, however, leads us to tbe conclusion that tbe evidence, to which objection was noted, for tbe purpose for which tbe court in tbe charge limited it, was competent. Plaintiffs’ contentions were substantially stated in tbe general charge, and we find no error in tbe instructions given, which would warrant a new trial.
Tbe court gave tbe jury tbe correct rule for tbe admeasurement of damages — tbe difference between tbe market value of tbe property before and after tbe injury — and was careful to instruct them that evidence as to tbe practicability of repairing tbe plaintiffs’ building, instead of removing it entirely, was for tbe purpose of aiding tbe jury in determining tbe reasonableness of tbe opinion expressed by tbe witnesses as to tbe market value of tbe property and tbe difference in market value before and after tbe injury. Farrall v. Garage Co., 179 N. C., 389, 102 S. E., 617; Construction Co. v. R. R., 185 N. C., 43, 116 S. E., 3. Tbe court also instructed tbe jury that if they found by tbe greater weight of tbe evidence that tbe building could have been repaired, and hence would have been of more value than if torn down, tbis should be taken into consideration in determining tbe market value after tbe injury.
On plaintiffs’ appeal,
No error.
Appeal of DEFENDANT A. II. Guión & Company.
Tbis appealing defendant assigns as error tbe overruling of its demurrer, which was based upon the ground that plaintiffs’ remedy was under section 3846 (bb), Micbie’s Code, and upon tbe further ground that, under its contract as servant and agent of tbe State Highway and Public Works Commission, tbe immunity of tbe State extended to and relieved it of liability for injuries incident to tbe work.
Tbe demurrer was properly overruled. Tbe plaintiffs, for remedy for tbe injury alleged, were not relegated to a claim for damages against tbe Highway Commission as for a taking of tbeir property; nor is a contractor, though working under contract with tbe Highway Commission, relieved of liability for injuries proximately caused by its negli[470]*470gence. Hughes v. Lassiter, 193 N. C., 651, 137 S. E., 806; Evans v. Construction Co., 194 N. C., 31, 138 S. E., 411; Gold v. Kiker, 216 N. C., 511, 5 S. E. (2d), 548; Cavarnos-Wright Co. v. Blythe Bros. Co., 217 N. C., 583, 8 S. E. (2d), 924; Thompson Caldwell Construction Co. v. Young, 294 Fed., 145. Tbe bolding in Wilkins v. Burton, ante, 13, bas no application to tbe question bere presented.
Also, Ave tbink tbe defendant’s motion for judgment of nonsuit was properly denied. Tbe evidence, taken in tbe light most favorable to tbe plaintiffs, in accord with, tbe established rule, was sufficient to carry the case to tbe jury. There was some evidence tending to support tbe allegations of tbe complaint that failure on tbe part of this defendant to exercise due care in tbe performance of tbe duty which it owed to tbe abutting property owners, proximately contributed to tbe injury complained of.
Tbe contract between tbe Highway Commission and this defendant required tbe latter, in addition to tbe construction of tbe street and concrete bridge at tbe Main Street crossing, to construct tbe retaining Avails of tbe excavation, “including all necessary shoring.” Tbe contract contained these further provisions: “Tbe contractor’s attention is called to tbe fact that tbe excavation for some portions of tbe bridges and retaining walls will endanger tbe foundation of adjoining structures and that be will be required to conduct bis work in such a manner that they will not be weakened with resulting damage to tbe structures. . . . Tbe contractor’s attention is further called to tbe fact that be will be held responsible for all damage to adjoining private and public property growing out of bis operations.” Tbe contractor was also obligated to furnish and place all temporary shoring required for tbe safe performance of bis operations, and tbe contractor’s attention was specifically called to tbe fact that water mains would be encountered during tbe construction of tbe project, and be Avas enjoined to conduct bis operations so as not to damage or interrupt tbe service. There was also evidence tending to shoAv that this defendant bad been notified of tbe character and type of tbe soil on tbe slope of tbe north side of tbe exca-A'ation and under Broad Street, adjoining plaintiffs’ building. Tbe plaintiffs’ evidence further tended to shoAv that, notwithstanding this notice and knowledge of these facts, this defendant failed to provide adequate shoring required for tbe prevention of earth slides, and placed pile driving machinery of enormous weight flat on tbe asphalt paving of tbe street and proceeded to carry on tbe pounding and jarring of a 52,000-pound hammer immediately above the junction of two large water mains, causing their separation and flooding the subsoil; that later this machinery was placed on adequate platform; that following tbe slide or cave-ins in August, 1938, due to tbe disconnection of tbe water mains, [471]*471defendant diverted water on Broad Street, and'that this water, augmented by a large rainfall, in November, 1938, poured down the bank and further undermined the street and plaintiffs’ building, and caused a large cave-in and the breaking of several sections of the water mains, rendering plaintiffs’ building unsafe and unfit for use.
We think there was evidence tending to show a negligent breach of the duty which this defendant owed to an abutting owner, proximately causing injury, and that there was no error in submitting the case to the jury. Smith v. Phillips, 213 N. C., 339, 196 S. E., 305; Bonapart v. Nissen, 198 N. C., 180, 157 S. E., 94; Davis v. Summerfield, 131 N. C., 352, 42 S. E., 818; 50 A. L. R., 499; Jamison v. Myrtle Lodge, 158 Iowa, 264; Bohrer v. Dienhart Harness Co., 19 Ind. App., 489.
On defendant Guión & Company’s appeal,
Appeal op DefeNdaNt City op High PoiNT.
. A consideration of the record in this case leads us to the conclusion that the motion for judgment of nonsuit as to the city of High Point should have been allowed. The city, in the commendable effort in cooperation with the State Highway Commission and the Southern Railway Company, to eliminate grade crossings in the city, entered into an agreement by which it undertook to have the necessary excavating done for the lowering of the grade of the railroad track at the Main Street crossing, and employed Blythe Brothers Company to do this work. Blythe Brothers Company performed their contract, made the necessary excavations and completed the principal part of their work before defendant Guión & Company began the construction of the bridge and retaining walls. Blythe Brothers Company, under the ruling of the court below, has been absolved from liability, so far as this appeal is concerned. The verdict and judgment establishing that the injury to plaintiffs’ property was caused by the negligence of Guión & Company has been upheld.
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Plaintiffs’ Appeal.
Devin, J.
Plaintiffs’ appeal involves only tbe rulings of tbe court relating to tbe issue of damages. They excepted to tbe admission of certain evidence as to tbe repair of tbe damaged building, and also to tbe charge of tbe court on tbis point, and to tbe refusal of tbe court to state tbeir contentions in tbe form requested. An examination of tbe record, however, leads us to tbe conclusion that tbe evidence, to which objection was noted, for tbe purpose for which tbe court in tbe charge limited it, was competent. Plaintiffs’ contentions were substantially stated in tbe general charge, and we find no error in tbe instructions given, which would warrant a new trial.
Tbe court gave tbe jury tbe correct rule for tbe admeasurement of damages — tbe difference between tbe market value of tbe property before and after tbe injury — and was careful to instruct them that evidence as to tbe practicability of repairing tbe plaintiffs’ building, instead of removing it entirely, was for tbe purpose of aiding tbe jury in determining tbe reasonableness of tbe opinion expressed by tbe witnesses as to tbe market value of tbe property and tbe difference in market value before and after tbe injury. Farrall v. Garage Co., 179 N. C., 389, 102 S. E., 617; Construction Co. v. R. R., 185 N. C., 43, 116 S. E., 3. Tbe court also instructed tbe jury that if they found by tbe greater weight of tbe evidence that tbe building could have been repaired, and hence would have been of more value than if torn down, tbis should be taken into consideration in determining tbe market value after tbe injury.
On plaintiffs’ appeal,
No error.
Appeal of DEFENDANT A. II. Guión & Company.
Tbis appealing defendant assigns as error tbe overruling of its demurrer, which was based upon the ground that plaintiffs’ remedy was under section 3846 (bb), Micbie’s Code, and upon tbe further ground that, under its contract as servant and agent of tbe State Highway and Public Works Commission, tbe immunity of tbe State extended to and relieved it of liability for injuries incident to tbe work.
Tbe demurrer was properly overruled. Tbe plaintiffs, for remedy for tbe injury alleged, were not relegated to a claim for damages against tbe Highway Commission as for a taking of tbeir property; nor is a contractor, though working under contract with tbe Highway Commission, relieved of liability for injuries proximately caused by its negli[470]*470gence. Hughes v. Lassiter, 193 N. C., 651, 137 S. E., 806; Evans v. Construction Co., 194 N. C., 31, 138 S. E., 411; Gold v. Kiker, 216 N. C., 511, 5 S. E. (2d), 548; Cavarnos-Wright Co. v. Blythe Bros. Co., 217 N. C., 583, 8 S. E. (2d), 924; Thompson Caldwell Construction Co. v. Young, 294 Fed., 145. Tbe bolding in Wilkins v. Burton, ante, 13, bas no application to tbe question bere presented.
Also, Ave tbink tbe defendant’s motion for judgment of nonsuit was properly denied. Tbe evidence, taken in tbe light most favorable to tbe plaintiffs, in accord with, tbe established rule, was sufficient to carry the case to tbe jury. There was some evidence tending to support tbe allegations of tbe complaint that failure on tbe part of this defendant to exercise due care in tbe performance of tbe duty which it owed to tbe abutting property owners, proximately contributed to tbe injury complained of.
Tbe contract between tbe Highway Commission and this defendant required tbe latter, in addition to tbe construction of tbe street and concrete bridge at tbe Main Street crossing, to construct tbe retaining Avails of tbe excavation, “including all necessary shoring.” Tbe contract contained these further provisions: “Tbe contractor’s attention is called to tbe fact that tbe excavation for some portions of tbe bridges and retaining walls will endanger tbe foundation of adjoining structures and that be will be required to conduct bis work in such a manner that they will not be weakened with resulting damage to tbe structures. . . . Tbe contractor’s attention is further called to tbe fact that be will be held responsible for all damage to adjoining private and public property growing out of bis operations.” Tbe contractor was also obligated to furnish and place all temporary shoring required for tbe safe performance of bis operations, and tbe contractor’s attention was specifically called to tbe fact that water mains would be encountered during tbe construction of tbe project, and be Avas enjoined to conduct bis operations so as not to damage or interrupt tbe service. There was also evidence tending to shoAv that this defendant bad been notified of tbe character and type of tbe soil on tbe slope of tbe north side of tbe exca-A'ation and under Broad Street, adjoining plaintiffs’ building. Tbe plaintiffs’ evidence further tended to shoAv that, notwithstanding this notice and knowledge of these facts, this defendant failed to provide adequate shoring required for tbe prevention of earth slides, and placed pile driving machinery of enormous weight flat on tbe asphalt paving of tbe street and proceeded to carry on tbe pounding and jarring of a 52,000-pound hammer immediately above the junction of two large water mains, causing their separation and flooding the subsoil; that later this machinery was placed on adequate platform; that following tbe slide or cave-ins in August, 1938, due to tbe disconnection of tbe water mains, [471]*471defendant diverted water on Broad Street, and'that this water, augmented by a large rainfall, in November, 1938, poured down the bank and further undermined the street and plaintiffs’ building, and caused a large cave-in and the breaking of several sections of the water mains, rendering plaintiffs’ building unsafe and unfit for use.
We think there was evidence tending to show a negligent breach of the duty which this defendant owed to an abutting owner, proximately causing injury, and that there was no error in submitting the case to the jury. Smith v. Phillips, 213 N. C., 339, 196 S. E., 305; Bonapart v. Nissen, 198 N. C., 180, 157 S. E., 94; Davis v. Summerfield, 131 N. C., 352, 42 S. E., 818; 50 A. L. R., 499; Jamison v. Myrtle Lodge, 158 Iowa, 264; Bohrer v. Dienhart Harness Co., 19 Ind. App., 489.
On defendant Guión & Company’s appeal,
Appeal op DefeNdaNt City op High PoiNT.
. A consideration of the record in this case leads us to the conclusion that the motion for judgment of nonsuit as to the city of High Point should have been allowed. The city, in the commendable effort in cooperation with the State Highway Commission and the Southern Railway Company, to eliminate grade crossings in the city, entered into an agreement by which it undertook to have the necessary excavating done for the lowering of the grade of the railroad track at the Main Street crossing, and employed Blythe Brothers Company to do this work. Blythe Brothers Company performed their contract, made the necessary excavations and completed the principal part of their work before defendant Guión & Company began the construction of the bridge and retaining walls. Blythe Brothers Company, under the ruling of the court below, has been absolved from liability, so far as this appeal is concerned. The verdict and judgment establishing that the injury to plaintiffs’ property was caused by the negligence of Guión & Company has been upheld. Guión & Company was under contract with the State Highway Commission to construct the bridge and the retaining walls and in the course of that employment did the things with respect to which negligence was charged. Thus, the operations complained of were not being carried on by the city, nor by its servants or agents, but by the contractor employed and acting under the supervision of the State Highway Commission. The Highway Commission had authority under the statute to construct the bridge over the railroad tracks on a State Highway. Mosteller v. R. R., ante, 275.
It must be borne in mind that in authorizing these operations, looking to the elimination of grade crossings and the lessening of the hazards of traffic, in grading its streets and building a bridge for a public thorough[472]*472fare, the city was acting in its governmental capacity and was not liable for incidental damage to abutting property, Dorsey v. Henderson, 148 N. C., 423, 62 S. E., 547; Parks-Belk Co. v. Concord, 194 N. C., 134, 138 S. E., 599; Calhoun v. Highway Com., 208 N. C., 424, 181 S. E., 271; Broome v. Charlotte, 208 N. C., 729, 182 S. E., 325; Jenkins v. Henderson, 214 N. C., 244, 199 S. E., 37; Sanders v. R. R., 216 N. C., 312, 4 S. E. (2d), 902, unless negligence in the manner of doing tbe work can be attributed to the city. Hoyle v. Hickory, 167 N. C., 619, 83 S. E., 738; Yowmans v. Hendersonville, 175 N. C., 574, 96 S. E., 45; 6 McQuillin Mun. Corp. (2nd Ed.), secs. 2779, 2805.
The acts of negligence alleged in the complaint, chiefly applicable to this defendant, were delay in repairing the water mains; failure to relocate the main on Broad Street; failure to repair the cracks in the street, and take precautions to protect plaintiffs’ property; failure to give notice of the nature and extent of the excavation. It will be noted that the jury in answer to the first issue absolved this defendant of the imputation of negligence with respect to the removal of lateral support from plaintiffs’ building without proper notice.
In none of the particulars mentioned does the evidence support the allegations of the complaint. The disconnection of the water mains was repaired without undue, delay, and, where sections of the main on Broad Street were displaced, the water system was rearranged with reasonable diligence. No liability can be imputed to the city on this ground. Parks-Belk Co. v. Concord, supra. The cracks in the street were alleged to have been inadequately repaired, but no injury appears to have been caused to plaintiffs’ property by reason thereof. The case involves no question of liability of the city to a traveler for failure to properly maintain its streets. There is no evidence of negligent omission to perform any duty owed the plaintiffs, under the allegations here, for which it may be held liable. To hold that the city, in the exercise of its governmental functions for the public welfare, was under obligation to foresee and guard against the negligence of an independent agency, working under the supervision of the State Highway Commission, would be to impose a greater burden on the city than the law requires. In any event its liability for failure, after notice, to guard against dangerous conditions due to the negligence of another would be secondary to that of the other. Gregg v. Wilmington, 155 N. C., 18, 70 S. E., 1070; Guthrie v. Durham, 168 N. C., 573, 84 S. E., 859. The evidence discloses no ground upon which liability ex delicto can be imposed upon the city of High Point for the injury to plaintiffs’ building, and the motion for judgment of nonsuit should have been allowed.
On appeal of defendant city of High Point,
Reversed.