#### Bernhard Weinstock, Appellee, v. Harry Manaster and Herman M. Lipman, Appeal of Herman M. Lipman, Appellant.

Gen. No. 19,791.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1913.

Reversed and remanded.

Opinion filed December 8, 1915.

Statement of the Case.

Action by Bernhard Weinstock, plaintiff, against Harry Manaster and Herman M. Lipman, defendants, in the Circuit Court of Cook county, to recover for the alleged negligence of defendants in excavating upon land adjoining that of plaintiff, and thereby causing damage to plaintiff’s building. From a judgment for plaintiff on a verdict of the jury for $675 against defendant Lipman, defendant Lipman appeals.

Defendant Manaster, who was the owner of a lot adjoining a building owned by plaintiff, engaged defendant Lipman to construct a building on his lot. The latter made an excavation on the lot for foundation and basement purposes. The plaintiff claimed that defendant Lipman did the excavating in a negligent and unskilful manner and thereby caused an injury to his building.

The court, at the instance of the plaintiff, gave to the jury the following instruction:

*467Abstract of the Decision.

Negligence, § 221 * —when instruction ignoring negligence of plaintiff improper. In an action to recover for damages caused to plaintiff’s building by negligent excavation by defendant, an instruction, based on the theory that the excavation was made wholly on land adjoining that of plaintiff, which directs that in case the jury find that defendant failed to use reasonable and ordinary skill in making the excavation complained of they- shall find for plaintiff, held erroneous, where there is evidence tending to show that but for such failure on the part of plaintiff such injury would not have occurred, in that such instruction entirely withdraws from the eon*468sideration of the jury the questions whether plaintiff exercised ordinary care to protect his building, and whether such failure contributed proximately to the injury sought to be recovered for.

*467“The court instructs the jury, as a matter of law, that the owner of land has a right to have the soil of his premises sustained by the lateral support of the natural soil of the adjoining land; and that while this right does not extend to the support of any additional weight which the owner of the soil may place upon it, such as a building, still the law is that the adjoining landowner is making excavations on his land must do so in a reasonably careful and skilful manner, so as to avoid doing any unnecessary injury to the building; and in this case, if you find from the preponderance of the evidence that the defendants made an excavation wholly within the lot owned by the defendant Manaster, and that in making such excavations they failed to use reasonable and ordinary care or skill, as charged in the declaration, and that by reason of such failure of the defendants to use such reasonable care and skill, the building of the plaintiff was damaged, then your verdict should be for the plaintiff.”

Louis Ziv, John C. King and James D. Power, for appellant.

Max Luster, for appellee; J. Ambrose Gearon, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Scanlan

delivered the opinion of the court.