Kipp v. New York Central & Hudson Railroad

Jenks, J.: The defendant appeals from judgment upon a verdict awarding damages for injuries to plaintiff’s buildings and machinery caused by an overflow of water, due to the faulty construction of a railroad bridge. The learned judge charged the jury : “ Now, of course, if the defendant did negligently in any manner construct that bridge and is guilty of negligence and that that negligence caused this overflow of this property, the defendant would be liable on the ground of negligence; but if you find that if the defendant was not guilty of any negligence at all, but very carefully interfered with this property right of the plaintiff and obstructed it, the plaintiff would still have a cause of action against the defendant for obstructing the stream.” This was duly excepted to by the defendant. I think that the instruction, as to liability aside from any negligence, is reversible error. The action is solely for negligence. Thus the plaintiff complains: “ That said bridge, as now constructed, is insufficient * * * and is so unskilfully and negligently planned * * * as to * * * form an obstruction; * * * that said defendant in the building, erection and repairing of said bridge carelessly and negligently threw into said stream near the west side of said bridge, a, number of large stones, which stones form an obstruction, * * * ” and “ that by reason of the aforesaid premises and the backing up of the said water by said bridge, plaintiff has suffered great damage.” There is a plain distinction between an action for wrong and one for negligence. (Dickinson v. Mayor, etc., of City of N. Y., 92 N. Y. 584, 588, citing authorities; Fisher v. Rankin, 27 N. Y. St. Repr. 582.) One cannot declare on negligence alone and recover on nuisance. (Fisher v. Rankin, supra, and authorities cited; Wittman v. City of New York, 80 App. Div. 585,592.) The learned counsel for the defendant not only excepted to the charge as indicated, but was consistent in his attitude during the course of the trial. There is nothing in the context to indicate that the learned judge was stating possible remedies by way of illustration of legal rights or was affording general information of legal reliefs. For aught [394] that appears he was charging the jury as to the law of the case in hand, and, to say the least, any layman might logically infer from this language that the plaintiff might recover in that case irrespective of any neglect by the defendant. I cannot find that the error, subsequently, was corrected or was cured. It is quite immaterial that the defendant was probably not misled. (Southwick v. First National Bank of Memphis, 84 N. Y. 420, 429.) The plaintiff did not seek the eure of amendment at the trial. Moreover, in Fisher.v. Rankin (supra), which also involved the questions of negligence and of nuisance, the court, per Daniels, J., says: “ But an amendment or change of that description cannot be made upon the trial, or after the trial upon the argument of an appeal. For the effect of that would be to change the action from one cause to another and different ground of action. And such a change cannot be, under the authorities, made tó support the judgment from which an appeal lias been taken. (Davis v. N Y., etc., R. R. Co., 110 N. Y. 646; 17 N. Y. State Rep. 172.) ” (See, too, Page v. D. & H. C. Co., 76 App. Div. 160.) The harm of the error to the appellant is more manifest than frequently appears in violations of the fundamental rule of secundum allegata etprobata. For if the defendant constructed this bridge pursuant to authority, then it might cogently contend that in the absence of proof of its lack of due care, under the circumstances it was protected by the principle of Bellinger v. New York Central Railroad (23 N. Y. 42), and the many judgments which have followed in its wake. The judgment and order should be reversed and a new trial granted, costs to abide the event. Goodrich, P. J., and Woodward, J., concurred; Hirsohberg, J,, read memorandum for affirmance.