Tremain v. Cohoes Co. — 2 N.Y. 163

Majority

p. 163

Tremain vs. The Cohoes Company.

Headnote

The defendants dug a canal upon their own land, and in executing the work blasted the rocks so as to cast the fragments against the plaintiff’s house on contiguous lands. Held, in an action on the case brought to recover damages for the injury, that evidence to show the work done in the most careful manner was inadmissible, there being no claim to recover exemplary damages, and the jury having been instructed on the trial to render their verdict for actual damages only.

Tremain sued the Cohoes Company in the common pleaa of Albany county. The pleadings and evidence were substantially like those in Say v. The Cohoes Co. {ante, p. 159). After the plaintiff had closed his evidence, the defendants offered to prove “ that the work of excavating their canal was done in the most careful manner.” This evidence was objected to by the.

p. 164

plaintiff and the objection sustained by the court of common pleas, and the defendants excepted.

The judge charged the jury that if they believed that the defendants authorized and directed the construction of the canal, and that the plaintiff’s house was injured by the blasting of rock for that purpose, the plaintiff would be entitled to recover the actual damage done to his house, and those (if any) he might have sustained in the usual occupancy and possession thereof; and that the plaintiff was not entitled to exemplary damages, nor to damages for obstructing the street mentioned in the declaration. The defendants excepted to the charge.

The supreme court on error to the common pleas gave judgment for the defendants upon the ground that the above exception was well taken. The plaintiff appealed to this court.

E. F. Bullard, for appellant.

D. Wright, for respondent.

delivered the opinion of the court. The evidence offered by the defendants to prove “ that the work was done in the best and most careful manner,” was deemed by the court below relevant on the question of damages. The action was case. The declaration lays no foundation for exemplary damages ; it does not aver that the injury was wilful, or even that it arose from the negligence of the defendants. No claim to them was made upon the trial, and the jury were expressly instructed to limit their verdict to a compensation for the actual injury sustained by the plaintiff.

If the plaintiff’s windows were darkened one half the day, the inconvenience to him would be the same whether the light was obstructed by accident or design, with an intent to injure him or from an anxious wish to preserve his property. The actual damage to the plaintiff would be the same whatever might be the motive for the act which caused it.

How the defendants performed their work was in this view of no consequence : what they did to the plaintiff’s injury was the sole question. And upon that issue the evidence offered was calculated to mislead instead of enlightening the jury.

p. 165

(Hoyt v. Gelston, 13 John. Rep. 152 ; Conrad v. Pacific Insurance Co., 6 Peters, 262, 282; 3 id. 69; 30 id. 80, 86.)

We therefore think the common pleas right in excluding it, and that the judgment of the supreme court must be reversed.

Judgment reversed.