212 F2d 587 Pappageorge v. Rosa

212 F.2d 587



ROSA et al.

No. 250, Docket 22964.

United States Court of Appeals,

Second Circuit.

Argued May 3, 1954.

Decided May 10, 1954.

Samuel C. Derman, Bridgeport, Conn. (George Koenig and Louis I. Gladstone, Bridgeport, Conn., on the brief), for plaintiff-appellant.

John F. McGowan, Bridgeport, Conn., for defendants-appellees.

Before CLARK, FRANK and MEDINA, Circuit Judges.


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In this landowner's action for damages to his buildings from an adjoining sewer excavation, plaintiff's basic contention of an absolute duty to avoid a cave-in on the part of the defendant contractor must fail. Such duty appertains only to the land in its natural state; where, as here, it is encumbered with buildings, the basis of liability must be negligence, as the trial judge correctly charged. Canfield Rubber Co. v. Leary & Co., 99 Conn. 40, 121 A. 283; Carrig v. Andrews, 127 Conn. 403, 17 A.2d 520, 132 A.L.R. 993; 4 Restatement, Torts § 817 (1939). The other assigned errors are without merit. The judge's comments on the evidence were restrained and appropriate, particularly when he emphasized the ultimate responsibility of the jury as to the facts. His charge was adequate and fair; moreover, no appropriate objection, upon which to found claim of error, was taken. And his inadvertent mistake in one instance as to a date could have misled no one. The case was well tried.