#### MINNIE KINLEY BROADHURST and J. N. WRIGHT v. BLYTHE BROTHERS COMPANY, A. H. GUION & COMPANY, CITY OF HIGH POINT, and SOUTHERN RAILWAY COMPANY.

(Filed 10 December, 1941.)

1. Negligence § 22—

The correct rule for the admeasurement of damages for negligent injury to real property is the difference in the market value of the property before and after the injury.

2. Same — Whether building could have been repaired after injury is germane in determining value of property after the injury.

Plaintiffs’ building was damaged by a cave-in resulting from alleged negligence in excavation work along an adjacent street. Plaintiffs did not repair the building, but tore it down. Held: Evidence of the practicability of repairing the building was properly admitted for the purpose of aiding the jury in determining the reasonableness of the opinion of witnesses as to the market value of the property before and after the damage, and the court properly instructed the jury that if they found by the greater weight of the evidence that the building could have been repaired, they should take such fact in consideration in determining the market value after the injury.

8. Highways § 20—

Plaintiffs’ building was damaged by a cave-in resulting from alleged negligence in excavation work incident to the construction of a highway overpass. Held: Plaintiffs were not relegated to a claim for damages against the Highway Commission as for a taking of their property under Miehie’s N. C. Code, 3846 (bb), and the demurrer of the contractor for the Highway Commission in plaintiffs’ action in tort was properly overruled.

4. Same—

A contractor performing work under a contract with the State Highway Commission is liable for injuries proximately caused by its negligence in the performance of the work.

*4655. Same — Evidence of negligence of contractor in performance of work under contract with Highway Commission held sufficient for jury.

Under an agreement between a city and the State Highway Commission to eliminate a grade crossing on a State highway within the city by the construction of a railroad underpass and a bridge over the tracks, the contractor for the Commission contracted to shore up the sides of the excavation required to lower the grade of the railroad tracks and to build the highway bridge. Plaintiffs’ building was damaged by a cave-in resulting from alleged negligence in the excavation work. Plaintiffs’ evidence of negligence on the part of the contractor for the Highway Commission tended to show that the contractor was given notice of the character and type of the soil on the bank of the excavation adjoining plaintiffs’ building and that water mains would be encountered in the progress of the work, that the contractor failed to provide adequate shoring, placed and operated pile driving machinery of great weight on the street near plaintiffs’ building, resulting in the separation of large water mains under the street and the flooding of the subsoil, that following a cave-in this defendant diverted surface waters from the street into the excavation, which water, augmented by a large rainfall, undermined the soil and caused the cave-in resulting in the damage in suit. Held: The evidence viewed in the light most favorable to plaintiff was sufficient to show negligent breach of duty which this defendant owed abutting property owners, resulting in damage to plaintiffs, and its motion to nonsuit was properly overruled.

6. Municipal Corporations § 13—

In authorizing a construction project to eliminate a grade crossing in the interest of public safety a municipality acts in its governmental capacity and is not liable for incidental damage to abutting property owners except for negligence in the manner of doing the work which is attributable to the city.

7. Municipal Corporations § 14 — Evidence held insufficient to show negligence attributable to city in performance of work authorized by city in exercise of governmental function.

Under an agreement between defendant city and the State Highway Commission to eliminate a grade crossing on a State highway within the city by the construction of a railroad underpass and a bridge over the tracks, the city undertook to make the necessary excavation for the lowering of the grade of the railroad tracks, and employed a contractor to do its part of the work. After the excavation was completed but before the contractor for the Highway Commission had constructed the retaining walls and the overhead bridge, there was a cave-in causing damage to plaintiffs’ building. There was evidence that operations by the contractor for the Highway Commission broke water mains under the street, flooding the subsoil. The jury found that the contractor for the city was not guilty of negligence in performing the excavation work. Plaintiffs’ allegations of negligence on the part of the city were that it delayed in repairing the water mains, failed to repair cracks in the street, and failed to give notice of the nature and extent of the excavation, and failed to take proper precautions to protect plaintiffs’ property. Held: The city, in the exercise of a governmental function, was not required to foresee and guard against negligence of its independent contractor working under the *466supervision of tlie State Highway Commission, or in any event its liability therefor would be secondary to the liability oí its contractor, and in the absence of evidence that it failed to exercise reasonable diligence in repairing its mains, or that its failure to properly repair the cracks in the street was a contributing cause of the damage, the city’s motion to nonsuit should have been allowed.

Appeal by plaintiffs, and by defendants A. H. Guión & Company and the city of High Point, from Pless, J., at January Term, 1941, of Guilford.

This was an action to recover damages for an injury to plaintiffs’ building in the city of High Point, alleged to have been caused by the negligence of the defendants Blythe Brothers Company, A. H. Guión & Company, the city of High Point, and the Southern Railway Company, incident to excavations adjoining plaintiffs’ property made for the-purpose of constructing a railroad underpass and an overhead concrete bridge in the city.

• The facts alleged in the complaint were substantially these: The city of High Point and the North Carolina State Highway and Public Works Commission, in cooperation with the Southern Railway Company, had entered into an agreement for the elimination of grade crossings in the city by lowering the grade of the tracks of the Railway Company. At the point where Main Street (one of the principal thoroughfares of the city and a State Highway) crosses the railroad the grade of the railroad was to be lowered some 28 feet, and over this cut a concrete bridge was to be constructed as a part of Main Street to carry the traffic of that street and the State Highway. The general direction of Main Street is north and south. The plaintiffs’ property, a two-story brick building, was located on the northwest corner of Main and Broad streets, fronting 27 feet on Main Street, and extending westward along Broad Street 100 feet. Broad Street intersected Main Street at right angles, and its southern line adjoined and paralleled the railroad right of way. In carrying out the agreement as to the crossing at Main Street, the city of High Point undertook to do the excavating necessary for lowering the tracks, and contracted with defendant Blythe Brothers Company to do this work. The State Highway Commission employed A. H. Guión & Company to construct a permanent concrete bridge and to erect the retaining walls along the sides of the excavation. The north bank of the cut, west of Main Street, was immediately south of Broad Street, and across this last named street stood plaintiffs’ building. At the time Guión & Company began the work for which it had contracted with the Highway Commission, in 1938, Blythe Brothers Company had practically completed the excavation. Under the surface of Broad Street the city of High Point had laid a 24-inch water main and this connected *467with a 12-inch main at the intersection of this street with Main Street. North of plaintiffs’ building the entire block was covered by business buildings, constituting enormous pressure on the land. The type of soil revealed by the cut as underlying Broad Street and plaintiffs’ building was red clay for. one and a half feet, underneath which was a stratum of water bearing sand. Notice of the nature of the soil was given defendant Guión & Company and its attention was called to the surrounding conditions. In beginning its work of erecting the bridge defendant Guión & Company took no steps to relieve the pressure on the north bank of the cut just south of plaintiffs’ building, while heavy piling was driven in the cut in the line of Main Street at a point near plaintiffs’ property. The pile driver, weighing 52,000 pounds, together with hoisting machinery, was placed on the asphalt surface of Broad Street, just over the junction of the water mains, and the effect of the driving was such as to jar the soil under Broad Street and plaintiffs’ building. In August, 1938, this caused the unjointing of the water mains, and as a result the water poured through the subsoil into the cut, carrying a slide or cave-in of earth and loosening the foundation of the street and building. Broad Street was blocked off by defendant Guión & Company, and the surface water thereon was diverted and caused to flow into the cut. In November, 1938, due to diverted water, augmented by heavy rainfall, loosening the underlying stratum, a heavy land slide and cave-in from the north bank into the cut occurred, carrying away a part of the street and several sections of the 24-inch water main. As a consequence, plaintiffs’ building was caused to settle and crack, the entire south wall was caused to move laterally several inches, and the plaintiffs’ building became unsafe and unfit for use, so much so that the building was rendered practically worthless, and it became necessary to have it torn down.

The pertinent allegations of negligence imputed to the defendants were that no shoring or bracing was done to prevent slides or cave-ins along the north side of the deep cut, and that after the slide of August, 1938, nothing was done to repair or prevent further slides, although the defendants knew or should have known of the danger to plaintiffs’ building; that defendants knew the type of soil involved and took no precautions to prevent slides; that the pile driving was done without due precaution to prevent injury. The allegations applicable to the city of High Point were that the city failed to inspect, 'repair and relocate its water mains, failed to repair cracks which appeared in the pavement of Broad Street, and failed to take precautions to protect plaintiffs’ property.

The defendants, severally, denied the allegations of negligence and denied that plaintiffs’ injury proximately resulted therefrom. The city of High Point denied liability for any injury to plaintiffs’ property on *468the further ground that in authorizing the lowering of the grade of the railroad track and the construction of the bridge, it was acting in its governmental capacity in the public interest; and that the construction of the bridge was done by Guión & Company under contract and supervision of the State Highway Commission, and that the city was not liable for injury resulting from the negligence of the contractor.

At the conclusion of plaintiffs’ evidence motion for judgment of non-suit as to defendant Southern Bailway Company was allowed. No exception was preserved as to this ruling.

Both defendants Guión & Company and the city of High Point demurred ore ienus on the ground that plaintiffs’ exclusive remedy was under sec. 3846 (bb), Michie’s Code, and that the injury complained of occurred while work was being carried on by agents and servants of the State Highway Commission. Both defendants also in apt time moved for judgments of nonsuit. Both demurrers were overruled and the motions for nonsuit denied, and defendants Guión & Company and the city of High Point excepted.

The following issues were submitted to the jury and answered as follows:

“1. Was the plaintiffs’ property damaged by the negligence of the City of High Point in removing lateral support from the lands and building of the plaintiffs without proper notice, as alleged in the complaint? Answer: No.’

“2. Was the plaintiffs’ property damaged by the negligence of the defendants, or either of them, as alleged in the complaint ? Answer: ‘Yes. (A) Blythe Bros. Co.: Yes. (B) A. H. Guión & Co.: Yes. (C) City of High Point: Yes.’

“3. If so, did the plaintiffs by their own negligence contribute to their injury? Answer: No.’

“4. If so, was such injury and damage caused by the primary and active negligence of: Answer: ‘(A) Blythe Bros. Co.: Yes. (B) A. H. Guión & Co.: Yes. (C) City of High Point: Yes.’

“5. What amount of damages are the plaintiffs entitled to recover? Answer: ‘$2,225.00.’ ”

The court set aside the verdict as to Blythe Brothers & Company on the ground that this defendant was entitled to peremptory instructions in its favor. No exception was preserved to this ruling. Plaintiffs’ motion to set aside the verdict on the fifth issue was denied. Judgment on the verdict as to defendant Guión & Company and the city of High Point was signed, and plaintiffs excepted and appealed on the issue of damages. Defendants Guión & Company and city of High Point appealed, assigning as error the court’s overruling their demurrers and motions for nonsuit.

*469 Lovelace <& Kirkman for plaintiffs.

Frazier •& Frazier for defendant A. H. Guión & Company.

Grover H. Jones for defendant City of High Point.

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*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, *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,

No error.

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*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.