| NY | Mar 24, 1874
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As assignee of Kingsley Strong the plaintiff has succeeded to their rights, and stands in respect thereto in the same position that they would were they the *204
plaintiffs in the action. His right of recovery against the defendant is no more or otherwise affected by his ownership of the dam intermediate that of the defendant and that of the assignors, than would theirs have been had they brought a suit for the injury complained of. This cause of action must, therefore, be considered and disposed of the same as though the latter were plaintiffs therein. A brief statement of the facts is necessary to understand the application of the charge and refusal to charge in respect to this demand to which exceptions were taken by the plaintiff, which present all the questions in the case. It was proved that the defendant constructed and maintained a dam across the stream in question, which raised, comparatively, a large pond; that the plaintiff had a dam upon the stream, about eighteen rods below, raising but a small pond; that the assignors had a dam across the same stream about a quarter of a mile below that of the plaintiff. Evidence was given tending to show that the defendant had negligently and improperly constructed his dam and kept the same in an unsafe condition; that there was a rise of water in the stream in September, 1869, which, in consequence of the unsafe and improper condition of defendant's dam, tore the same out, thereby discharging a large mass of water into the stream, by means of which the plaintiff's dam and that of the assignors were more or less torn out, causing damage to each respectively. Upon the entire evidence it was a proper question for the jury whether such were the facts. In reference to these facts the judge charged that if, after the first, defendant's, dam gave way there was another concurring efficient cause to produce the injury on the lower Kingsley dam, then the plaintiff could not recover for injuries to the lower, or Kingsley dam, although the jury should find the defendant's dam was defective and out of repair. To this part of the charge the plaintiff excepted. The court further charged that if there was sufficient water in the plaintiff's dam (the middle dam) at the time the defendant's dam gave way, so as to increase the volume and force of the water in the stream to any material and efficient *205
amount, and it gave more power and force to the stream by adding thereto the waters in the plaintiff's dam, then the plaintiff could not recover for such injuries to the lower (Kingsley) dam, for the reason that such damages were too remote. To this part of the charge the plaintiff excepted. Could there be any possible doubt as to the construction of the charge this doubt was removed by the refusal to charge as requested by the plaintiff. The clear meaning of the charge is that, although the defendant had negligently constructed an unsafe dam, and carelessly maintained it in an unsafe condition, thereby confining a large volume of water in his pond, which dam in consequence of its condition broke away, precipitating into the stream a great mass of water which tore out the plaintiff's dam, and in its onward course tore out the Kingsley Strong dam, yet the latter could not recover of the defendant if the volume of the water in the stream was materially increased by tearing out the middle (plaintiff's) dam, as in that case the damages would be too remote. Cases are cited, showing that when a party sustains an injury from the concurring negligence of several he may recover therefor against all or either. (Chapman v. The New Haven R.R.,
Ryan v. The N.Y. Central R.R. Co. (
The counsel for the respondent insists that the charge, if erroneous, could not have injured the plaintiff, for the reason that the jury found for the defendant as to the injury done to the middle (plaintiff's) dam; and that this finding establishes the fact that the defendant was free from negligence in respect to his dam. The answer to this is that there is nothing showing clearly upon what ground the verdict in this respect was based. It may have been upon that claimed by the plaintiff, or upon the condition of the plaintiff's dam satisfying the jury that it went out from some other cause, or upon some other ground. It is enough that it does not appear that it was on the ground that the defendant was free from negligence.
The counsel further insists that as no error is complained of in the judgment for the defendant in respect to the plaintiff's dam that this part should be affirmed, irrespective of the error in the charge in regard to the injury to the Kingsley dam, and that it should be reversed and a new trial ordered only as to that. The answer to this is that the plaintiff had the right to unite all the causes in one action, and that in case he succeeds in recovering upon either a sum entitling him to costs, he is not only entitled to recover his costs of the action, but relieved from the payment of the costs of the defendant. Besides, there is no precedent or *208 law authorizing such a disposition of a case situated like the present.
The judgment and order of the General Term, denying a new trial, must be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed.