Drake v. New York, Lackawanna & Western Railway Co.

sluice-way through the railroad, and as to whether if they were negligent in that, that such negligence caused the injury; ’’ folio 662. In delivering to the jury the .charge the learned judge said : “ There are two propositions which the plaintiff must establish before he can recover in this action. The first proposition is: That the defendant has been guilty of negligence. And the second proposition: That such negligence has caused this injury of which the plaintiff complains.” And further on he proceeded to-say “that the canal constituted in the sense of law a water course so that this defendant owed a duty in the construction of this rpad, to provide a water-way, or water course there sufficient to carry off all the water that might reasonably be expected to flow through it. Then the first question for you to determine is, did it fulfill its duty, and did it provide a sufficient water-wav to carry off all the waters that might reasonably be expected to flow there. * * You are to consider all those facts, and to determine the single question as to whether, under the circumstances, as they existed at the time that this company built its road, they supplied a water course which was sufficient to carry off such water as might reasonably be expected to flow down through the channel of the canal, and through this water-way or sluice-way. Now, gentlemen of the jury, if you find that they provided such a course as would be sufficient to carry off the water that might reasonably be expected at that time ; then I charge you that they were not guilty of negligence, and the plaintiff cannot recover. If they have failed, however, to provide such a water course as would carry off the waters that might reasonably be expected at that time, then the plaintiff must establish another proposition, before he can recover, and that is, that such negligence on the part of the defendant has caused this injury.” After the body of the charge had been delivered, in response to a request made in behalf of the defendant, the court charged that the defendant was not “ absolutely required to furnish such a passage-way for water, but they were only held to reasonable care in providing a water-way sufficient.” ■ It is alleged in the complaint “ That at the time defendant constructed its roadbed or railway, as hereinbefore alleged through the said to.wns of Horseheads and Big Flats and the farm of this plaintiff, there existed and ran a natural watercourse or brook or creek from Sing Sing creek or the vicinity or locality of Sing Sing creek, easterly or northeasterly through the said towns mentioned and plaintiff’s said farm, which, although liable by reason of the nature of the adjoining lands or territories to sudden rises or increase of the volume of water, was, within said towns and through plaintiff's said farm confined to a certain well defined course and channel by reason of the high banks on either side thereof.” And it is alleged that prior to the construction of the defendant’s road “ the water of the said water course in times of freshet and flood, as well as in ordinary times, was confined and flowed within the banks of said stream.”

Evidence was given upon the trial tending to support the allegations of the complaint, and it justified the instructions as to the law given by the trial judge to the jury. Vernum v. Wheeler, 85

Hun, 53 ; Mitchell v. N. Y., L. E. & W. R. R. Co., 36 Hun, 177 ; Brown v. Cayuga & Susquehanna Railroad Co., 12 N. Y., 486 .

In Bellinger v. N. Y. C. & H. R. R. R. Co., 23 N. Y., 42 , in the course of the opinion delivered it was said that the defendant had a right to construct the road, and in doing so it was “ bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable,” The quotations we have made from the charge delivered in this case seem to indicate that that rule was observed. See MS opinion of Merwin, J., in Mundy v. N. Y., L. E. & W. R. R. Co.; 57 St. Rep., 367 , and cases therein cited.

(2.) The evidence does not indicate any affirmative act or omission of duty on the part of the state which relieves the defendant of its obligation to so use its property as not to cause injury to the plaintiff, an adjacent owner. Masterson v N. Y. C. R. R. Co., 84 N. Y. 247 .

(3.) The evidence relating to the damages sustained by the plaintiff was properly received. Hartshorn v. Chaddock, 135 N. Y. 122 ; 48 St. Rep., 932 . _ _

_ _ (4.) We are of the opinion that the court committed no error in denying the defendant’s motion for a non-suit.

(5.) It may be that the verdict of the jury awards the plaintiff a liberal compensation for the injury which he sustained, but upon an inspection of all the evidence we are of the opinion that the special term was warranted in refusing to grant a new trial on the ground that the damages were excessive. The foregoing views lead to an affirmance.

Judgment and order affirmed with costs.

Martin and Merwin, JJ,, concur.