17 N.Y.S. 336 | N.Y. Sup. Ct. | 1892
As finally submitted to the jury, the issues in this action related to the defendant’s liability for damages sustained by the plaintiff by reason of injuries to her property, caused partly by the blasting done by the
We may safely assume, for the purposes of this appeal, that the defendant not only had the right to make the excavations and put its railroad tracks in the place named, but that it had also the incidental right of making all necessary blasting therefor. It is true that the blasting, the effect of which caused such a large part of the plaintiff’s damages, was done without negligence, so far as the evidence discloses the fact to be. Prom this circumstance it is argued by counsel for the appellant that the defendant is not liable for the injuries thus sustained by the plaintiff. This argument is based mainly upon the conceded fact that no particular blast is shown to have caused the shaking of the foundations of the house and the weakening of its walls, but that the same came by the repeated concussions or detonations received either through the motion of the atmosphere or of the intervening earth. Under the facts disclosed, w»e do not think the defendant can be justified, under the doctrine of Lasala v. Holbrook, 4 Paige, 170, which holds that the defendant had the right to excavate its own lands, if done with due care, though the ultimate effect might be to cause an adjoining and recently built house to fall. Nor does the case fall within the principle of Atwater v. Trustees, 124 N. Y. 602, 27 N. E. Rep. 385, affirming the judgment of this court in Atwater v. Canandaigua, (Sup.) 9 N. Y. Supp. 557. In that case many of the authorities cited to us upon this appeal were fully considered, and it was concluded therefrom that municipal corporations engaged in the performance of works of a public nature authorized by law are not liable for consequential damages occasioned thereby to others, where private property is not directly encroached upon, unless such damages are caused by misconduct, negligence, or unskillfulness. The rule was there limited, and we still believe it should be limited, to injuries inflicted in the performance of public works, and strictly of a public nature, directly authorized by statute. If, as it seems to us, there is anything more contained in the opinion of Debió, J., in Bellinger v. Railroad Co., 23 N. Y. 42, the same does not appear to be germane to the case then before the court, and must be considered as obiter. See Radcliff v. Mayor, 4 N. Y. 195. But the principle exonerating a party from'consequential damages when performed under public law for a public purpose, without negligence, does not apply to the facts disclosed in this case. Consequential damages are those which are not the direct and immediate results of the acts complained of. In the case before us, as we view it, the injury caused
It is further claimed that the defendant was not liable because the work of excavating and blasting had been let to one Casey, who, it is claimed, was an independent contractor, for whose acts the defendant was not liable. We agree fully with the opinion of the learned justice, rendered on the motion for a new trial, that the evidence to show such relation between the company and Casey was not competent, under the pleadings, and fully approve of the doctrine of the authority cited by the learned justice, namely, Baker v. Bailey, 16 Barb. 541, and for the further reason that the evidence was entirely immaterial, whether competent under the pleadings or not, because the only testimony relating to the question shows that Casey was employed by the defendant specially to do this particular work, and that it was well known to all of the parties that blasting would be necessary, in order to make the proper excavations for laying the defendant’s tracks. McCafferty v. Railroad Co., 61 N. Y. 178; Dressell v. City of Kingston, 32 Hun, 533. We think that the disposition of the case made by the learned justice at the trial and on the motion for a new trial was correct, and that the judgment and order entered should be affirmed. All concur.