Perley v. B. C. & M. R. R.

FROM BELKNAP CIRCUIT COURT. The charge of the court seems to me to have been, in most respects, an admirable statement of the relative rights and duties of the plaintiff and the defendants. There is, however, one part of the charge which is open to objection. The court told the jury "that if no injury would have been occasioned to the plaintiff by the construction of the bridge by the defendants in the manner in which it was constructed if the plaintiff had not placed his wharf where he did place it, the defendants were not liable; that the plaintiff had no right to take advantage of the acts of the defendants to their prejudice; that if the acts of the defendants were wrongful, and yet if the plaintiff would not have been injured if he had allowed his property to *Page 213 remain as it was before the wrongful acts of the defendants, the defendants are not liable; that if the construction of the wharf was the immediate cause of the damage complained of by the plaintiff, he cannot now recover damages therefor." The words "take advantage of" seem to imply an intention on the part of the plaintiff to build his wharf in such manner as to expose it to injury from the defendants' bridge, and if the charge went no further than this I should hold it to be correct; but I think the charge really does go further, to the extent of holding that the plaintiff, if he used his land for wharves, was to do so at his own peril; and that if, using all reasonable care and skill in their erection, they should still be injured by the wrongful acts of the defendants in building their bridge, he would be without remedy. This was, I think, going too far. If a town negligently suffers its highway to be insufficient, the traveller cannot, therefore, take advantage of that neglect by unreasonably exposing himself to danger; and if he do so, he will be without remedy. But if in the exercise of ordinary care and prudence, such as the circumstances of the case require, he suffer injury from the negligence of the town, he may recover. So in this case, although the plaintiff could not take advantage of the wrongful act of the defendants, still, if using reasonable care and skill in the erection of his wharf he should suffer injury by such wrongful act, I cannot see that it makes any difference that the plaintiff's erection was after and not before that wrongful act in point of time. The court were requested by the plaintiff to give the following instructions: I. That it is immaterial whether or not the bridge was built before the wharf; that priority in use by either the plaintiff or the defendants would confer no right upon either to obstruct or divert the natural and accustomed channel of the river to the injury of the other. II. That the plaintiff had the right to make a reasonable use of the river bank along his shores for any beneficial purpose he pleased, and a like right to the use of the water of the river, provided his use was not to the injury of the defendants. These instructions were correct in themselves, and were calculated to qualify that part of the charge which has been found objectionable. If, however, that part of the charge had remained, I do not think that its effect would have been certainly removed by adding these instructions to the charge. The next two requests were as follows: III. The defendants have not the right under their charter to divert or obstruct the natural current of the river to the injury of the plaintiff, unless such diversion was the natural and necessary consequence of the erection of a proper bridge across said river. IV. That if in the erection of said bridge more piers were put in than was necessary, or if they were placed so as to divert or obstruct the natural current more than was necessary, or if the natural channel of the river was unnecessarily obstructed or diverted by the defendants' *Page 214 embankments at either end of said bridge, the defendants did not make a reasonable and proper use of their rights if thereby the plaintiff had been injured. These instructions were fully and completely contained in the charge, and I do not think, if given particularly, they would have added anything to its force. The legal position advanced in them — that unnecessary obstructions were unreasonable — could not have escaped the jury listening to the charge. The fifth request was as follows: V. That if the defendants unreasonably diverted the natural current of the river upon the plaintiff's land, and such diversion was the proximate or substantial cause of injury to the plaintiff, they are liable, though other causes for which they are not in fault may have contributed to the injury. This request was clearly objectionable, because it made no distinction between contributory negligence of the plaintiff, and other contributing causes to the injury. The sixth instruction requested was to the effect that if no damages were awarded for the wharf lot by the commissioners, and if the erection of the defendants' bridge has damaged the plaintiff in the beneficial use, occupation, or enjoyment of said lot, they are liable in this action for such damage, even though said bridge was constructed in a proper manner. The court instructed the jury to the effect that the award of damages by the commissioners must be taken to be conclusive, and that no action can be maintained to recover further damages. This instruction is well supported by the following case — Aldrich v. Cheshire Railroad Co., 21 N.H. 359, Clarke v. Railroad, 24 N.H. 114, Dearborn v. Railroad, 24 N.H. 179 — and is directly in contradiction to the foregoing request, which, therefore, was rightly refused. For the reasons above stated the verdict must be set aside.