Barclay, J.
Plaintiff’s case is for damages occasioned by the fall of a building, occupied by him as .lessee of the Aekerson estate, in Kansas City, Missouri.
The gist of his petition is that ‘ ‘ the defendant wrongfully, carelessly and negligently dug out and carried away the soil, immediately adjoining, and under the west wall of, said building, by means of which * * * the said west wall was made to fall, * * * thereby ■destroying and damaging the property of plaintiff therein contained * * * to the extent of $3,000'.”
The answer is a general denial.
The circuit court forced plaintiff to a nonsuit by .giving an instruction in the nature of a demurrer to the evidence. It is-, therefore, proper to outline the facts upon which plaintiff relies as constituting his cause of •action. In so doing, he is entitled to the benefit of the most favorable view of his case that the evidence warrants, and of every reasonable inference therefrom. ■So viewed the substance of his case is this:
The plaintiff’s building was a two-story brick, in which he carried on business. It stood two inches from [239]*239the eastern boundary of defendant’s property, and extended from the street line some seventy-two feet southward.
The excavation to which the damage is ascribed •was made upon defendant’s lot close along that boundary line. This line ran at a right angle to Ninth street on which plaintiff’s house fronted; both the lots reached .southward from the street, one-hundred-and twenty-five feet, to an alley.
The defendant proposed erecting an engine-house ■on its lot; and, in prosecuting that purpose, contracted in writing with a firm for the necessary excavating and masonry for the foundations.
Some of the terms of that contract will be mentioned later.
The contractors sublet the excavating to another, who began its. performance, having a foreman there in ■charge of a number of workmen and teams.
The defendant’s chief engineer occasionally visited the work, but the actual, superintendence, under the first contract mentioned, was mainly exercised by Mr. Butts, the engineer’s assistant, who remained on the ground. The foreman of the digging party testified that the subcontractor placed him under the orders of Mr. Butts, and that the work was accordingly done as the latter directed.
About the time the excavating began, plaintiff had an interview with Mr. Butts in which he asked, “if he thought it was not dangerous to be taking dirt away” (namely from “alongside of the wall”), to which Mr. Butts replied that “there was not going to be any injury to the building; of course he was going to take it out in sections, and wall it up as they went along.” Plaintiff ,says that that “kind of satisfied” him.. The house fell about a week later. Plaintiff observed the work mean- • while.
[240]*240A trench, some five feet wide, and from seven to eleven feet deep, was first dug, near defendant’s east boundary line, from the street to a point about opposite the south end of plaintiff’s building, some seventy-two or three feet. The foundation of the latter was at a depth of eleven feet from the natural surface. They then began at the street line and carried the trench to a further depth of about two feet (a total depth of about thirteen feet) for a distance of twenty-five or thirty feet from the street.
■ The concrete and footing stone of defendant’s foundation wall were then laid in that space or section. Three days later, according to the testimony of the foreman of the excavators, Mr. Butts directed him to’ “take out the remainder of the ditch,” and he proceeded to do-so, excavating to the additional depth of twenty-four to twenty-six inches (to correspond with the level of the first section), along the entire building line opposite plaintiff’s house, a stretch of forty odd feet from the end of the first section. Mr. Butts was present while this work was being done. The job was begun at half past two o’clock and was finished about half past five o’clock of the same afternoon. That night about ten o’clock a large part of plaintiff’s building slipped into the excavation, on account (as is claimed) of that removal of its lateral support; but that portion of the house which faced the masonry work of the first section of defendant’s foundation (for a distance of twenty-six feet from the street front) remained in place.
The soil of the locality is that of the Missouri river bottom, a mixture of sand and loam, formed by alluvial deposit.
There was abundant evidence of experienced builders and civil engineers that the customary way of removing such soil for foundations, adjacent to and below that of other buildings, is to take out the earth in [241]*241sections of ten to sixteen feet, each, in length, and to substitute the new foundation in each section before opening the next one; that any other mode of doing such work is likely to result as in the present case; but that building in sections involves an expense from eighteen to thirty per cent, greater than the cost of proceeding without subdividing'the work in^that manner.
On these facts the trial court declared that plaintiff had no cause of action, and he has appealed against that ruling.
I. Before reaching the main issue it will be well to dispose of a subordinate one touching the responsible connection between defendant and the digging force, to whose acts the consequences complained of are ascribed. The defendant claims that those acts were done, in effect, by a contractor independent of its control, and that it is not liable on account thereof.
Ik is now an accepted rule that supervision of such work may be retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivisions of it; but in the case at bar the contract, under which the work was done, goes much further. It declares that “the excavation shall be carried to such general depth as may be indicated by the engineer; excavations for the trenches and piers will be made as required from time to time in the progress of the work, and to such an extent as may be indicated by the engineer. ’’ Along with this language are statements that the engineer was “in charge of the work,” and that men who refused or neglected to obey his orders were to be discharged by the contractors.
Now, the very act complained of here is the digging of the trench too long and too deep in the circumstances. That act is charged as negligence. It was ordered by defendant’s representative on the spot, - [242]*242acting for the chief engineer who had express power to direct “by his authorized agents,” as well as personally. The work was done precisely,as ordered. Thus it was the exercise of the discretion or judgment vested in the supervising authority, which caused the catastrophe; and for that exercise of judgment defendant must respond. Lancaster v. Ins. Co. (1887), 92 Mo. 460; Bower v. Peate (1876), 1 Q. B. Div. 321.
II. The chief question in the case is to determine .what duty toward plaintiff rested upon defendant in view of the facts.
Very much has been written upon the right of lateral support and its limitations under the English law. It will not be necessary to restate the general principles governing that right. They were discussed very lucidly here, years ago, in Charless v. Rankin (1856), 22 Mo. 573, which remains a leading case on that subject.
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Barclay, J.
Plaintiff’s case is for damages occasioned by the fall of a building, occupied by him as .lessee of the Aekerson estate, in Kansas City, Missouri.
The gist of his petition is that ‘ ‘ the defendant wrongfully, carelessly and negligently dug out and carried away the soil, immediately adjoining, and under the west wall of, said building, by means of which * * * the said west wall was made to fall, * * * thereby ■destroying and damaging the property of plaintiff therein contained * * * to the extent of $3,000'.”
The answer is a general denial.
The circuit court forced plaintiff to a nonsuit by .giving an instruction in the nature of a demurrer to the evidence. It is-, therefore, proper to outline the facts upon which plaintiff relies as constituting his cause of •action. In so doing, he is entitled to the benefit of the most favorable view of his case that the evidence warrants, and of every reasonable inference therefrom. ■So viewed the substance of his case is this:
The plaintiff’s building was a two-story brick, in which he carried on business. It stood two inches from [239]*239the eastern boundary of defendant’s property, and extended from the street line some seventy-two feet southward.
The excavation to which the damage is ascribed •was made upon defendant’s lot close along that boundary line. This line ran at a right angle to Ninth street on which plaintiff’s house fronted; both the lots reached .southward from the street, one-hundred-and twenty-five feet, to an alley.
The defendant proposed erecting an engine-house ■on its lot; and, in prosecuting that purpose, contracted in writing with a firm for the necessary excavating and masonry for the foundations.
Some of the terms of that contract will be mentioned later.
The contractors sublet the excavating to another, who began its. performance, having a foreman there in ■charge of a number of workmen and teams.
The defendant’s chief engineer occasionally visited the work, but the actual, superintendence, under the first contract mentioned, was mainly exercised by Mr. Butts, the engineer’s assistant, who remained on the ground. The foreman of the digging party testified that the subcontractor placed him under the orders of Mr. Butts, and that the work was accordingly done as the latter directed.
About the time the excavating began, plaintiff had an interview with Mr. Butts in which he asked, “if he thought it was not dangerous to be taking dirt away” (namely from “alongside of the wall”), to which Mr. Butts replied that “there was not going to be any injury to the building; of course he was going to take it out in sections, and wall it up as they went along.” Plaintiff ,says that that “kind of satisfied” him.. The house fell about a week later. Plaintiff observed the work mean- • while.
[240]*240A trench, some five feet wide, and from seven to eleven feet deep, was first dug, near defendant’s east boundary line, from the street to a point about opposite the south end of plaintiff’s building, some seventy-two or three feet. The foundation of the latter was at a depth of eleven feet from the natural surface. They then began at the street line and carried the trench to a further depth of about two feet (a total depth of about thirteen feet) for a distance of twenty-five or thirty feet from the street.
■ The concrete and footing stone of defendant’s foundation wall were then laid in that space or section. Three days later, according to the testimony of the foreman of the excavators, Mr. Butts directed him to’ “take out the remainder of the ditch,” and he proceeded to do-so, excavating to the additional depth of twenty-four to twenty-six inches (to correspond with the level of the first section), along the entire building line opposite plaintiff’s house, a stretch of forty odd feet from the end of the first section. Mr. Butts was present while this work was being done. The job was begun at half past two o’clock and was finished about half past five o’clock of the same afternoon. That night about ten o’clock a large part of plaintiff’s building slipped into the excavation, on account (as is claimed) of that removal of its lateral support; but that portion of the house which faced the masonry work of the first section of defendant’s foundation (for a distance of twenty-six feet from the street front) remained in place.
The soil of the locality is that of the Missouri river bottom, a mixture of sand and loam, formed by alluvial deposit.
There was abundant evidence of experienced builders and civil engineers that the customary way of removing such soil for foundations, adjacent to and below that of other buildings, is to take out the earth in [241]*241sections of ten to sixteen feet, each, in length, and to substitute the new foundation in each section before opening the next one; that any other mode of doing such work is likely to result as in the present case; but that building in sections involves an expense from eighteen to thirty per cent, greater than the cost of proceeding without subdividing'the work in^that manner.
On these facts the trial court declared that plaintiff had no cause of action, and he has appealed against that ruling.
I. Before reaching the main issue it will be well to dispose of a subordinate one touching the responsible connection between defendant and the digging force, to whose acts the consequences complained of are ascribed. The defendant claims that those acts were done, in effect, by a contractor independent of its control, and that it is not liable on account thereof.
Ik is now an accepted rule that supervision of such work may be retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivisions of it; but in the case at bar the contract, under which the work was done, goes much further. It declares that “the excavation shall be carried to such general depth as may be indicated by the engineer; excavations for the trenches and piers will be made as required from time to time in the progress of the work, and to such an extent as may be indicated by the engineer. ’’ Along with this language are statements that the engineer was “in charge of the work,” and that men who refused or neglected to obey his orders were to be discharged by the contractors.
Now, the very act complained of here is the digging of the trench too long and too deep in the circumstances. That act is charged as negligence. It was ordered by defendant’s representative on the spot, - [242]*242acting for the chief engineer who had express power to direct “by his authorized agents,” as well as personally. The work was done precisely,as ordered. Thus it was the exercise of the discretion or judgment vested in the supervising authority, which caused the catastrophe; and for that exercise of judgment defendant must respond. Lancaster v. Ins. Co. (1887), 92 Mo. 460; Bower v. Peate (1876), 1 Q. B. Div. 321.
II. The chief question in the case is to determine .what duty toward plaintiff rested upon defendant in view of the facts.
Very much has been written upon the right of lateral support and its limitations under the English law. It will not be necessary to restate the general principles governing that right. They were discussed very lucidly here, years ago, in Charless v. Rankin (1856), 22 Mo. 573, which remains a leading case on that subject. For present purposes it will suffice to say, it is settled law that the unquestionable right of a landowner to remove the earth from his own premises, adjacent to another’s building, is subject to the qualification that he shall use ordinary care to cause no unnecessary damage to his neighbor’s property in so doing.
We need not inquire how such a principle became engrafted upon a system which traces its origin to the English common law; but that it is there, is evidenced by abundant decisions of which a few leaders, besides that above cited, may be mentioned. Foley v. Wyeth (1861), 2 Allen, 131; Austin v. Railroad (1862), 25 N. Y. 334; Quincy v. Jones (1875), 76 Ill. 240.
The underlying principle of legal ethics on which this rule rests is well stated in Charless v. Rankin, above, to be that, “if a man, in the exercise of his own rights of property, do damage to his neighbor, he is [243]*243liable, if it might have been avoided by the use of reasonable care.”
The reports furnish many illustrations of its application, but we need not stop to emphasize the statement of it by references to them, since its force, in cases of this character, is now fully recognized.
What is the standard of ordinary care which one excavating on his own estate must use to avoid damage to his neighbor’s building, is a question of some difficulty. In many localities the subject is regulated by statutes, defining the reciprocal rights of the parties.
It may be stated generally in the absence of a statutory rule that the care required of a party so excavating is that of a man of ordinary prudence in the circumstances of the particular situation; but that statement affords meager aid in determining the exact duty imposed by the rule in its practical application to any given case.
The fact is that the particular circumstances so largely shape and indicate the duty that any attempt to reduce the rule to greater certainty would probably tend to impede rather than to promote the administration of justice.
Quite recently it has been definitely held, following supposed indications in earlier cases, that prior notice to the neighbor whose property may be endangered by an excavation is an essential part of the ordinary care referred to (Schultz v. Byers (1891), 53 N. J. L. 442; 22 Atl. Rep. 514; 44 Alb. L. J. 290); but that ruling was accompanied by a vigorous dissent, and can scarcely be considered as settling the point. It is not necessary to decide it in the case at bar, for it is here conceded that plaintiff had ample notice, in fact, of the intended excavation. He also had notice that it was to be made in a particular manner, namely, by removing the dirt “in sections,” and walling “it up as they went along.” [244]*244The defendant’s superintendent in charge so stated to him at the outset, when plaintiff suggested the danger of the undertaking; and the former, as a witness in the cause, did not deny the plaintiff’s account of that interview.
It was in evidence that that course was the one indicated by ordinary prudence, and by the uniform custom of builders in that locality, in view of the nature of the surrounding soil.
But for that information as to the mode of excavation and construction to be pursued, the plaintiff might have taken effective steps to shore up and protect his building — steps which were unnecessary if the work was done in sections.
We think that plaintiff had the right to rely upon the statement of the superintendent, made during the progress of the work and of his agency (and, hence, res gestee), as to the care which defendant intended to exercise towards the property of plaintiff with reference to which that statement was made. He had the right to assume that the course foretold would be folLowed, at least until he had notice to the contrary and a reasonable opportunity thereafter to act upon such later notice. We have added this last observation to meet the suggestion of defendant that plaintiff was duly advised that the excavation was not being done in sections. But on this point it appears that one section was first built, substantially as promised; and that the long and dangerous excavation later, to which the fall of the building is charged, occurred between half past two and five o’clock of the afternoon preceding the injury.
On these facts the court cannot justly declare, as a conclusion of law, that plaintiff, in the exercise of reasonable care, was chargeable with notice that the plan of construction, previously indicated by the superintend[245]*245ent, was not to be followed, and should have taken measures of his own for the protection of his domicile.
• Nor do we think plaintiff’s case concluded by the consideration that the removal of the earth in sections would have involved some additional outlay, and would have lessened, in some slight degree, the strength of its foundation wall.
As to the latter fact, it is not claimed that the utility or value of the wall, for the purposes of its construction, would be in anywise impaired by the building in sections.
As to the former fact of extra expense, we regard it immaterial, in view of the other evidence already alluded to, not to mention broader considerations bearing on that point. Beauchamp v. Mining Co. (1883), 50 Mich. 163. If defendant notified plaintiff that a certain mode of proceeding was to be pursued, and thus led him to act upon that hypothesis and refrain from taking steps which would otherwise have been necessary and prudent to insure the safety of his property, the risk of injury to the plaintiff in the premises imposed on defendant the duty toward him of conforming to the plan of work of which it had advised him, or to reasonably notify him of a change in that plan in season to admit of his adopting protective measures of his own.
The evidence tends to prove that no such notice was given, and, in default thereof, the measure of reasonable and proper care on defendant’s part, in the circumstances, was that indicated in the statement of the superintendent.
As to whether the same measure of care would rest upon defendant in the absence of the peculiar facts here presented, we are not called upon to say. In the view we take of the case, the fact, that the promised course of construction involved a greater expense than [246]*246some other one, can have no material bearing on the rights of the parties.
On the whole case we think it fairly a question of fact whether defendant exercised ordinary care in directing the excavation to be made as it did, in view of the circumstances mentioned, and whether the fall of the building was caused or contributed to by any want of such care. The trial court we consider erred in instructing to the contrary.
The judgment should be reversed and the cause remanded. It is so ordered.
Judges Black, Brace, Macearlane and Thomas concur. Chief Justice Sherwood and Q-antt, J., dissent.