100 N.Y.S. 499 | N.Y. App. Div. | 1906
The claimant insists, first, that the proof shows that the injury was entirely caused by the overflow r.esiilting from the negligent pouring of the water from the canal into the creek, and, again, even if the creek would otherwise have overflowed that the damage which he has sustained cannot be separated or apportioned — a part to the-natural overflow and a part to -the overflow caused by the negligence of the State.. He, therefore, claims that the State in any event is liable to him for all his damages.
• In Ring v. City of Cohoes (77 N. Y. 83) the head note in part reads: “ Where several proximate causes contribute to an accident, and each is an efficient cause, without which the accident would not have happened, it. may be .attributed to all or any of them; but it cannot be attributed to a cause unless without its operation the accident would not have happened.” This rule of law is approved in Ehrgott v. Mayor (96 N. Y. 283) and Rider v. Syracuse R. T. R. Co. (171 id. 155). In Searles v. Manhattan Railway Co. (101 N. Y. 661) the rule of law is stated : “ When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was producéd by the former cause.” In Taylor v. City of Yonkers (105 N. Y. 208) Judge Finch, in'writing for the court, approves the rule as stated in Ring v. City of Cohoes (supra), and further says : “ The question involved has been quite earnestly debated in other States where it arose under statutes requiring towns to keep the streets safe and convenient. In Maine and Massachusetts it is held that if, besides the defect in the way, there is-also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. (Citing cases.) These rulings are based largely upon two grounds, that the town is liable for the defect alone, and that the proportion of injury due to that cause is impossible to be ascertained. A contrary rule is held in Vermont and New Hampshire. (Citing cases.) We have already stated the rule to be in this State that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury
These authorities establish the proposition that if this injury would have happened .irrespective of defendant’s' negligence the defendant is not liable for any damage, although its negligence contributed thereto. It would seem to follow, as a necessary corollary to this proposition, that if any part of these damages would have resulted, irrespective of defendant’s negligence, for such part of the ■ damage the defendant is not liable. The problem, is then presented to determine what part, if any, of the damage would have resulted irrespective of the defendant’s negligence. When this amount is ascertained the difference between such amount .and the damage actually suffered would seem to measure the liability of the' State. It is not necessary here to hold these propositions where the injuries were caused by two proximate efficient causes, both negligent or wrongful acts. The rule of damages here stated does not seem to have been adopted by the trial court."
These conclusions seem to be in accord with the following cases •: Wallace v. Drew (59 Barb. 413); Little Schuylkill Navigation C. v. Richards’s Administrator (57 Penn. St. 142). In the case last-cited damages were sought by reason of the fall of a dam, with deposits of coal dirt from different mines on the stream above the dam, worked by persons having no connection with each other and with no concert of action. It was held that, they were not jointly liable for the combined results of throwing coal dirt into the riv'er; that the tort of each was several when committed and that they did not become jointly liable for all the consequences; Agnew, J., in criticising the decision of the court below, says : “ The doctrine of the learned judge is somewhat novel, though the case itself is ,new; but, if correct, is well calculated to alarm all riparian owners, wh.o may find themselves by a slight negligence overwhelmed by others-in gigantic ruin.” Again: “True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may -form some guide and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand.” (See, also, St. Louis, I.
The damages found by the trial court seem to be based upon incompetent evidence.. The amount of water flowing through Limestone creek at that time is based entirely upon the evidence of experts who have founded their opinions upon hearsay and incompetent testimony. The records which were put in evidence, and upon which these opinions were founded, .were properly stated by the presiding judge of the court below to have been insufficiently authenticated. . The records were of the amount of water which fell into the Chittenango Creek valley, a valley seven or eight miles east of the valley of Limestone creek, and the deduction as to the amount of water flowing through Limestone creek was- founded purely upon a comparison of the area of the watershed of Limestone creek with that of Chittenango creek. This, in our judgment,. is too remote upon which can be founded any determination as to the amount of water which passed down Limestone creek upon that day. 'The evidence shows that these waters were caused by various showers, and it is a matter of common knowledge that' these showers are many times so far.local that a large amount of water will fall in one valley and a much lesser amount in. another Valley contiguous thereto. This fact presents too much uncertainty for the comparison made by the State’s- witnesses, upon which the judgment'was based.
The judgment is, therefore, reversed and a new trial ordered, with costs.
All concurred.
Judgment reversed and new trial granted, with costs.