11 N.Y. 200 | NY | 1874
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
Ryan, v. The N. Y. Central R. R. Co. (35 N. Y., 210), and The Pennsylvania R. R. Co. v. Kerr (62 Penn., 353) are cited in support of the second proposition of the charge. In the former it was held that one negligently setting fire to a building upon the lands of another, from which fire was communicated to and destroyed the building or property of a third party, was not liable for the injury to the latter ; such injury not being the probable and necessary consequences of his wrongful act. The rule determining the liability in this class of cases appears to be well settled. The difficulty, when any arises, is in its application to the facts of the particular case. The party is liable for the natural and probable consequence of his wrongful act or omission, but not for those which are remote and speculative. The law will not enter upon inquiries as to the latter for the reason that such a degree of certainty cannot be arrived at in respect thereto as to constitute a safe ground for judicial action. It is for this reason that judicial action is based upon the proximate and not the remote cause of events. Assuming that this rule was correctly applied in the case of Ryan v. The New York Central (supra) — as to which see Webb v, The Rome, Water-town & O. R. R. Co. (49 N. Y., 420) — it comes far short of sustaining the proposition under consideration. Here, upon the hypothesis upon which the proposition was based, the injury to the Kingsley dam was clearly the natural and probable consequence of the break in that of the defendant. By
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
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.