Negligence — Generally — Excavation by subcontractor — Bank in dangerous state — Shoring performed by general contractor — Liability of subcontractor.
1. Where a subcontractor, in accordance with his contract — with the general contractor, completes the excavation of a lot without negligence in the actual excavating, the subcontractor is not liable to a third person injured by reason of the collapse of the bank created by the excavation, where it appears that under the contract the shoring of the bank was to be done by the general contractor, that the general contractor commenced shoring the bank the day after the subcontractor completed his excavation, and that the bank collapsed about eight days later because of an error of judgment or of negligence on the part of the general contractor in performing the shoring work. [249-53]
Evidence — Admission — Pleadings — Failure to file affidavit of defense — Instrumentality — Admission of excavation work — Proof that shoring was done by other person.
2. Where plaintiff in his statement of claim in an action of trespass for personal injuries avers that the defendant, under a contract with the general contractor, performed certain excavation work on designated premises, the defendant, by failing to file an affidavit of defense, admits the truth of such averment, but is not precluded from showing that the accident did not occur in connection with the work of excavation but happened through negligence in the shoring of the bank which had been excavated by defendant, and that the shoring was not included in the excavation work of defendant and was done by another. [248-9]
Argued December 4, 1934.
PER CURIAM, January 7, 1935:
The judgment of the court below is affirmed on the opinion of Judge STERN.