29 N.Y.S. 563 | N.Y. Sup. Ct. | 1894
This action was brought to recover damages which the plaintiff is alleged to have sustained to her house and premises by the action of water during the floods of June 1 and August. 1, 1889, through the negligence of the defendant. The defendant’s railroad crosses Munkey run, a creek in the city of Corning, by means of an iron bridge, resting upon stone abutments. The size of the throat of the bridge is 19|- feet wide, and from 2 feet 3 inches to 3.27 feet deep. The area furnished for the flow of water, according to the testimony of one of the engineers, was (>5.08 square feet. The plaintiff’s house is situated on the south side of the defendant’s railroad, and upon the east side of the creek. Between the house and the railroad track is one of the streets of the city, with a bridge over the creek. The creek is upon the land of the plaintiff, and her barn is located at the rear of her lot, and constructed over the creek, resting upon stone walls upon either side of the stream. The creek descends from a mountain, running north-across several streets, and empties into the Chemung river. From the barn to the defendant’s bridge the descent is eight feet. On-the occasion of the June flood, gravel, stones, and floodwood were carried down the stream, lodging under defendant’s bridge, nearly filling the throat thereof, and, as is claimed, extending back through the channel of the stream to the barn, so as to cause the water flowing in the channel of the creek to depart therefrom above the barn and around the end thereof, through' the plaintiff’s lot, cutting a channel therein several feet in depth. The water also filled the-cellar underneath her house, destroying some personal property therein, and doing other damage. The bridge over the highway was washed away, and carried against the bridge of the railroad' company, and that bridge was raised up upon one side, so that the-ties upon which the rails were laid stood on end.
It is claimed that the defendant was guilty of negligence in the construction of its bridge, in not leaving proper space for the flow of the wafer. It was the duty of the defendant to provide a bridge with an opening of sufficient capacity to meet all the ordinary exigencies of the climate and the situation of the stream, and also such extraordinary exigencies as experience would lead the people-residing in that vicinity to believe might sometimes occur, although infrequently. Bogart v. Railroad Co., 72 Hun, 412, 25 N. Y. Supp. 175; Bellinger v. Railroad Co., 23 N. Y. 42; Ward v. Telegraph Co., 71 N. Y. 81-84. The trial court properly and fairly charged upon this branch of the case, and submitted the question of fact to the jurors for their determination.
A serious question of fact is presented as to whether the defendant should be chargeable with the damages resulting from the June flood. It was on the occasion of the noted Johnstown disaster, and
The court charged that the rule of damages to the real estate was the depreciation in value occasioned by the flood. An exception was taken to this charge. During the trial the defendant asked the witness Tourney if he knew what it was worth to cart in dirt for filling. This was objected to, sustained, and exception taken. The defendant’s counsel also offered to show what it would be worth to fill in the ditch with stone, gravel, and earth, and put it in the condition it was left in. This was objected to as not a proper measure of damages, and the objection was sustained, and exception taken. The offer is quite informal. We presume that it was the intention of the defendant’s counsel to refer to the channel that had been cut through the plaintiff’s premises, and it, perhaps, was his purpose to show what it would cost to fill that channel, and put if in the condition it was in before the flood. We do not think either exception requires a reversal of the judgment. It does not appear what the
- “The rule seems to he that when the reasonable cost of repairing the Injury,, or, in this case, the cost of restoring the land to its former condition, is less than what is shown to be the diminution in the market value of the whole property by reason of the injury, such cost of restoration is the proper measure of damages. On the other hand, when the cost of restoring is more than any such diminution, the latter is generally the true measure of damages.”
This rule, as it appears to be understood by the appellant’s counsel, would establish a double rule of damages; and, upon a trial, evidence may be given with reference to each, and then the jury adopt that which is the most favorable to the defendant. In such cases a difference in opinion may often occur as to which would be the most favorable, with the result that part of the jurors may base their verdict upon one measure of damages, and the rest upon the other. We have not so understood the rule where the damages are permanent and the restoration impossible. If a man has upon his lands a sand bank, and a load of sand is taken therefrom, it being an article of merchandise, his damages, doubtless, would be the value of the sand taken. If a forest tree was cut therefrom, which had a market value either for lumber or-wood, he may be compensated in damages by awarding to him the value thereof; but if he should have grown fruit trees -standing upon his premises, and they should be cut therefrom," the tree would possess no- value of consequence after being severed from the freehold, and it could not be replaced or repaired, so that the injury would be permanent, and the damages would be the difference in the value of the premises before and after its removal. Dwight v. Railroad Co., 132 N. Y. 199, 30 N. E. 398.
As we have seen, soil washed away cannot be restored. Other soil may be substituted in its place, and the premises partially restored. In such case, it appears to us, the proper measure of damages is the difference in the value before and after the injury. It doubtless would be competent cross-examination or on the defense to show that the plaintiff’s claim for damages was extravagant, by showing that a substantial restoration could be effected by filling the place from which earth had been washed away at a trifling cost. But this would not operate to change the measure of damages. It would only tend to show that the damages were not as great as claimed. But, as we have seen, neither the question nor the offer referred to was sufficiently comprehensive to cover this question. We have examined the other exceptions presented by the case, but find none that require a new trial. The judgment and order appealed from should therefore be affirmed. All concur.