Spencer v. San Francisco Brick Co.

HALL, J.

Plaintiff sued defendant for damages caused to his premises by the giving way of a bulkhead upon the premises of defendant, and recovered a judgment for the sum of $600. Defendant moved for a new trial upon the grounds of excessive damages and errors of law occurring at the trial. The motion was denied, and defendant appealed from the judgment and order denying the motion for a new trial.

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The action was for damages to the premises of plaintiff resulting from the giving way of a bulkhead on the premises of defendant, whereby dirt, gravel, sand, etc., fell against the fence and chicken-house of plaintiff, and injured the same, and gravel, dirt, etc., fell upon the plaintiff’s premises, and timbers of the bulkhead were projected onto and over plaintiff’s premises.

Plaintiff is the owner of a lot in the city and county of San Francisco twenty-five feet in width, the rear of which abuts against a lot owned by defendant, and used by it for the purpose of dumping dirt. To retain this dirt, defendant, some two years previous to the accident causing the injury complained of, built a bulkhead which, on January 15, 1901, following a spell of rainy weather, gave way. Plaintiff’s lot was occupied by a dwelling-house, and the rear portion of the lot was inclosed with a board fence, and in the corner was a chicken-house nine feet square and eight feet high, built of boards, and two sides of which were formed by the rear and side fences of plaintiff. The giving way of the bulkhead, and the consequent falling of the heaped-up earth, pushed the fence and chicken-house out of position, broke some of the boards from the fence, as well as caused some of the beams and timbers of the bulkhead to project into and over the rear portion of plaintiff’s lot. Plaintiff testified that the fencing affected was worth $125, and the chicken-house $30, while a carpenter called by the defendant testified that the fencing and chicken-house could have been restored to their original condition at a cost of $25. There is no evidence that the dwelling-house was in any way injured. Indeed, a photograph of that portion of the premises claimed to have been injured, attached to the transcript, shows that the injury was confined to the rear portion of the lot, which was used for a chicken-yard. It is perfectly apparent from the evidence in the record that the actual damage could not have exceeded $155, even if the chicken-house and fences had been destroyed, which they were not, but only pushed out of position and considerably damaged.