Easterbrook v. Erie Railway Co.

By the Court, James C. Smith, J. The exceptions taken by the defendants to the charge of the judge, and to his refusals to charge as requested, proceed upon the assumption that the plaintiff is chargeable with negligence in not having removed the bar of gravel which was thrown up on his premises by the flood of 1861. Upon no other hypothesis can it be insisted that the judge erred in charging the jury that if the unskillful location and construction of the culvert was the substantial cause of the injury, the plaintiff’s right to recover would not be affected, even though the course of the water was influenced to some extent by the gravel bar thrown up by the same cause previously; or that he erred in refusing to charge that the defendants are not responsible in this action, for the consequences of the bar. Indeed the defendants’ counsel • now claims as the basis of his argument that as his clients had compensated the plaintiff for causing the bar to be thus thrown up on the plaintiff’s land, it was the business of the latter to remove the bar, if its removal was necessary, and that he allowed it to remain at his own peril. But that conclusion does not follow. The compensation referred to, was for the damages which the plaintiff [98] sustained by the flood of 1861, and for aught that appears, it covered such 'damage's only as he would have been entitled to recover in the action which he had theretofore commenced, and which was settled by the payment of such compensation. The legal rule of damages in such action had no reference to the cost of removing the bar. The measure of damages in that class of cases is the depreciation in the value of the plaintiff’s premises occasioned by the injury resulting from the defendants’ acts. (24 Barb. 273.) In a case like that which was settled by the parties, where the deposit is comparatively extensive, and the cost of removing it would probably equal if not greatly exceed the value of the soil covered by it, the rule contemplates that the material deposited by the flood is to remain upon the plaintiff’s land, and one of the items of damage is the depreciation in the value of the land in consequence of its remaining. This is a far more favorable rule for the defendants in such cases than one based upon the cost of removal. The plaintiff was therefore under no obligation to remove the gravel, by reason of his having received such compensation, nor did he incur any peril, in a legal sense, by suffering it to remain. If, as the jury are presumed to have found, the flood of water upon the plaintiff’s premises in 1864, was caused substantially by the improper and unskillful .location and construction of the culvert, the effect of the gravel bar in deflecting somewhat the course of the flood, has no legitimate bearing upon the question of damages. The case is the same, in that respect, as if the flood had been thus diverted by the natural formation of the surface of the plaintiff’s land, or as if the bar had been deposited there before the culvert was made. If the defendants’ argument were sound, it would have the effect, not merely to lessen .the plaintiff’s recovery, but to defeat it altogether, since an action for damages on the ground of the defendants’ negligence cannot be sustained [99] if negligence on the part of the plaintiff, however slight, co-operated with the defendants’ misconduct to produce the injury. [Monroe General Term, September 4, 1865. Johnson, J. C. Smith and E. D. Smith, Justices.] I think the charge and rulings excepted.to were in. all respects correct, and that the judgment should be affirmed. Judgment affirmed.