Rector of the Church of the Holy Communion v. Paterson Extension Railroad

The opinion of the court was delivered by Vroom, J. This is a writ of error to the Circuit Court of the county of Passaic, and removes the judgment entered in favor of the plaintiff below upon the findings of the Circuit judge, the case having been tried by him without a jury. The ease 'has been before this court before, and in the opinion of Chief Justice Depue, reported in 37 Vroom 218, the facts on which our decision was then rested are set forth in detail. It is sufficient for the determination of the present ■writ to state the facts substantially as found by Mr. Justice Dixon at the last trial in the Passaic Circuit. In 1881 the Paterson Extension Railway Company made a contract with the New York and Scranton Construction Company to- have a railroad cut constructed in the city of Paterson close to the southerly end of the property of the plaintiff below. The cut was made between sixteen and nineteen feet deep, and on the northerly side thereof a retaining wall was built. At the base this wall rested partly on the land of the plaintiff. Then, as found by the trial judge, “by reason of the excavation, the wall of the church settled and cracked in the summer of 1881, but this was not chargeable to any lack of care or skill in the doing pi the work; so far as it was chargeable to the work it was due to the design.” Negotiations were then had between the parties to- this suit and an arrangement was then, entered into by the terms of which the railroad company should malee the foundation and outer' walls of the church safe and secure and the plaintiff should do the necessary repairs inside the church at the expense of the railroad company. And in pursuance of this arrangement the railroad company paid for the repairs inside of the church,' and did certain work on- the foundation and — 401 — outer walls, which apparently made them secure, but which later proved to be insufficient for that purpose. Some time after the work above mentioned, was finished the walls of the church again began to crack and show signs of settling. The cause of this, as found by the trial judge, being “that the railroad company had not carried Hie church foundation down below the bottom of the cut, and as the soil was sandy and had been saturated with water, the cut acted as a drain, which gradually drew away the moisture from the soil under the church foundation and caused the soil to shrink.” In the summer of 1887 the condition of the church, by reason of the settling of its walls, became so dangerous that the congregation could not safely continue to occupy it, and it was obliged to rebuild the south wall of the church on a foundation that went below the bottom of the cut, and this prevented further drainage and made the walls of the church safe and secure. The reasonable cost of these repairs was the sum of $3,850. This suit was subsequently brought to recover this amount so spent for repairs, with interest, from the railroad company. On the first trial of this cause a verdict was directed by the trial judge in favor of the defendant upon the ground that a certain receipt given by the church to the railroad company in 1882 in “full settlement of all damages done by railroad company against our church” 'was a conclusive acquittance, and, on error to the Supreme Court, that judgment was affirmed, the Supreme Court holding (34 Vroom 470) that the receipt then given by the church on January 9th, 1882, upon the payment of the sum of $1,000 was a complete acquittance of all claim for damage by reason of the excavation. Also, that it was not competent to prove that at the time of the delivery of the writing the railroad company made an oral agreement to restore and secure the foundation of .the church edifice, and further, that any cause of action of the plaintiff was barred by the statute of limitations. This direction of a verdict for the defendant was held to be erroneous in this court (Church of the Holy Communion v. — 402 — Paterson, &c., Railroad Co., 37 Vroom 218), and, in the opinion, Chief Justice Depue holds that (at p. 225) “the damages sued for in this .case did not result from an unlawful act of the defendants in making the excavation in 1881. The digging of the cut was the occasion for requiring the erection of a wall for the protection of the church property, but was not the cause of the injury which was subsequently sustained. Nor did the damages result from the building of the wall which was done by agreement between the parties. The agreement was that the compan3r was to build the wall at its own expense and make it safe. The wall contracted for was for the protection of the church property in the future and not a mere temporary expedient. The location, 'dimensions and construction of the wall and the character of its foundations were committed to the exclusive control of the railroad company. ‘The church officers did not in any way participate in or super-wise the work of construction. It is manifest that the company assumed responsibility for the protection of the church edifice from injury which might follow from the running of its trains. The first proposition in the course of negotiations was made by the officers of the church offering for the sum of $3,500 to release the railroad company from all responsibility for present repairs and future damages by reason of constructing and operating the railroad. The company declined that proposition and instead chose to the erection of a wall of the dimensions and construction that, in the judgment of its officials, would be sufficient to accomplish the purpose, paying the church for past injury to its property not a penny beyond the amount -expended for reparation. The wall was located by the company within four and a half feet of the track on which the'company was to run its trains. The projection of the ties brought the force of the vibrations caused by the running of the trains near to the wall. The evidence at the trial was that the wall was not properly underpinned, and the jarring of the trains passing kept jarring and settling all the time. Thereafter, from time to time, injury was done to the church property. The injury and the cause of it continued until 1887, when the damages sued for in this ease were sus — 403 — tained. The injury for which this suit was brought is entirely distinct from the injury arising from the first excavation, which was settled by the receipt of 1882. The injury which was embraced in that settlement -was caused by the original excavation. The injury now sued for resulted from the defect in the wall as constructed in 1882.” On the first trial of this case it appeared that the original cause of the instability of the church wall and the consequent damages was due to the improper construction and mainte.nance of the railroad company’s retaining wall. On the present trial the trial judge found that the origin of the difficulty to have been in the construction of the railroad cut and retaining wall in 1881, when, “by reason of the excavation, the walls of the church settled and cracked in the summer and fall of 1881, but this was not owing to any lack of care and skill in tire doing of the work; so far as it was chargeable to the work it was due to' the design. The retaining wall of the cut remains solid and unimpaired up to the present time.” This finding removes from the case any question as to the liability of the construction company as an independent contractor. The fault was due to the design, and the design was that of the railroad company. An independent contractor is liable in exoneration of the employer only for the defects in doing the work, and not for defects in design. Cooley Torts 548; Poll. Torts 66; Cuff, Administratrix, v. Newark and New York Railroad Co., 6 Vroom 17. The facts proved at the first trial of this case, as will appear by an inspection of the earlier opinion of this court, vary considerably from those proved at the second trial. The fundamental fact, however—the fact upon which the opinion of Chief Justice Depue rests—is the same in each, and that is the failure of the railroad company to make permanent the restoration of the church wall. The agreement of the company in 1881 was that it should make the foundation and outer walls of the church safe and secure; that this was the agreement was the finding of the trial judge at the last trial, and it was the same as that upon which the decision of this — 404 — court was based in 37 Yroom, although there may have been some confusion in the opinion between the terms retaining wall and the south foundation wall of the church, yet the facts which the opinion assumes to be proved on the first trial with respect to the retaining wall have been found by the trial judge on the second trial to be true of the foundation wall. The damages for which the present finding is given are found expressly to have been the cost of the same work which should have been done by the railroad company under its agreement, viz., the rebuilding of the south wall of the church on a foundation that went below the bottom of the cut and so prevented further drainage and made the edifice safe and secure. This is what the railroad company agreed to do and failed to accomplish. No exception was taken to this finding and no opinion is intended to be expressed as to the correctness of the finding as to the measure of damages. Clearly an action would lie against the railroad company for a breach of this agreement and it is not material what the form of the action might be, whether in tort or on contract, as was decided in this court in the former case (37 Vroom 22G), "it is a fundamental principle of law applicable alike to breaches of contract and torts; that in order to found a right of action there must be a wrongful act done and a loss resulting from that wrongful act.” It was held that future damages were not covered by the settlement of 1882, and that the injury for which this suit was brought rras a new cause of action which arose in 1887, and that the statute of limitations began to run only from that date, and that this suit was brought within six years from the time the damages were sustained. We do not perceive, as insisted here by the plaintiffs in error, that any new issues, either of fact or law, are now presented ;o under the law settled by the former adjudication in this court the right of the plaintiff below to recover is manifest, and this right camrot be denied without practically reversing the earlier decision of this case. The judgment below should be affirmed.