9 N.Y. 42 | NY | 1861
The defendants had a right to construct their railroad across the creek and the low lands on each side of its channel, at the place where it was brnlt; but they were bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable. This was the substance of the charge of the judge.
I think, he stated the rule with substantial accuracy; though I am of opinion that the principles of the action were not as fully explained as was desirable. But no request to supply the deficiency was made by the defendant's counsel. The exceptions to the charge cannot be sustained.
I am of opinion, though not without some hesitation, that there was evidence enough to submit the case to the jury upon the question whether the road and its embankments and bridges were constructed with suitable care and skill. There was no evidence directly bearing upon the point, by any witnesses of competent knowledge and experience. But the fact that, on three several occasions between the time of the construction of the road, in 1835, to the trial, in 1856, the water and ice had been forced out of the stream upon the plaintiff’s land; and that, in the judgment of witnesses who had seen the breaking up of the ice, the diversion of- the flood from its natural course on the west side, where it would have been harmless, to the. creek and on to the4and on the other side, was caused by the embankment, arid.,' the want of sufficient apertures for the passage of the water, afforded soirie evidence that the structures referred to were faulty. When the character of the stream, the peculiar suddenness and violence of- the freshets which caused the injury, and their infrequency, are taken into consideration, it is evident that the plaintiff’s case was not a strong one; but I think it-was one to be determined by the jury. I am, therefore, in favor of sustaining the ruling • of the court, in denying the motion for a nonsuit.
But the judge refused to allow the inquiry to be made of a witness, who was an engineer by profession, and who was familiar with the locality and with the defendant’s structures, whether the embankment and the bridges were carefully and skillfully constructed with reference to the creek. It does not appear upon what ground the question was rejected by the .
A number of cases are referred to in the opinion of the general term, as tending to establish the doctrine that the defendants are liable for all damages consequent upon the erection of their works, irrespective of the question of negligence or want of care and skill in constructing them. Considering the point to have been conclusively adjudged in the case of Radcliff v. The Mayor, &c., I might leave the point to stand upon that precedent •, but I think it may readily be shown that there
The case of The Rochester White Lead Company v. The City of Rochester (3 Comst., 463), was an action for negligently constructing a culvert under one of the streets of the city, by means of which (on account of the deficient capacity of the passage-way for the water), its flow in a freshet was obstructed, and it was set back upon the plaintiff’s manufactory, to his itij ury. A recovery by the plaintiff was sustained. The action, it will be perceived, sounded in negligence, and the opinion , of the court proceeded wholly on the ground that the charge had been established; the main suggestion of the court being that the city had not shown that it employed a competent engi-. neer to construct the culvert. No idea appears to have been entertained that the defendants were responsible for the mere fact of setting back the water, irrespective of the question of negligence. If that were the law, the whole discussion in the case would have been without an object. A late case in the Court of Queen’s Bench has been insisted upon, as determining
“ occasioned by severance or otherwise, which could have been awarded by a jury, in case the value of such land and compensation for damages had been settled by the verdict of a jury.” The arbitrator awarded a gross sum for the value of the land, including the damages mentioned, which was paid; and the defendant insisted that this embraced the damages for which the suit was brought. The court held otherwise, and decided that it only included the damages which were capable of being ascertained and estimated at the time compensation was awarded, and did not reach the damages in question, which, it was said, could neither be foreseen nor even guessed at by the arbitrator. The second question was; whether the defendants were liable, since they had built the road according ■ to the provisions of the act of Parliament authorizing its construction. The act obliged the company to make openings for flood waters in one part of the route, .in another county, but was silent as to such openings at the place in question. Hence the defendants insisted,’ upon the principle expressio unius est exdusio álterius, that they were not bound to make flood gates at that place. Upon that point, the court said, the company might haye been at liberty, under the act, to con
An obstruction may be such that any one, whether professional or not, would see at a glance that it was improper and lacked safeguards necessary to be made, and which might effectually prevent injury. Such seems to have been the case just mentioned. There was but a single culvert in the embankment, and the injury was done during a high flood occurring the same year in which the lands were appraised. In this case there was an opening of considerable width, besides the bridge over the creek, for the passage of floods. It does not appear that it had ever proved insufficient except when a high flood was complicated by the breaking up of the ice, and that occurred only thrice in twenty years, and the same thing appears to have happened once at least before the embankment was constructed; and, on one of the occasions after the building of the road, the freshet was destructive to most of the
There are two other cases mentioned in the opinion of the general term, namely, Fletcher v. The Auburn and Syracuse Railroad Company (25 Wend., 462), and Brown v. The Cayuga, &c., Railroad Company (2 Kern., 486). The first of these cases is substantially overruled in the one referred to in 4 Comstock, 195. In the other case the only question presented was, whether a party continuing a nuisance was liable if he had not had notice to remove it. The concluding sentence in the last opinion given in that case, was written when the writer had not in his mind the case in which Fletcher v. The Auburn Company was reconsidered; but no part of that opinion was adopted by the court. The case itself raised no question material to the
I am of opinion that the judgment should be reversed, on account of the erroneous ruling Upon the question of evidence.
Hoyt, J., dissented; Comstock, Ch. J., and Lott, J., did not sit in the case, • *
Judgment reversed, and new trial ordered.