William Pollett, Appellant, v. Charles Long, Respondent

William Pollett, Appellant, v. Charles Long, Respondent. Where an injury to one is caused by and is the natural and probable result of the wrongful act or omission of another, such other: js-Iiable therefor although other causes put in motion by the act or omission, and which in the absence thereof would not have produced the resultyeontribute to the injury. , Plaintiff’s evidence tended to show that defendant constructed a dam so improperly, and maintained it in so unsafe 41 condition, that in consequence thereof it broke away, discharging a large quantity of water into the stream, which tore out an intermediate dam, and with the volume of water thus increased tore out the dam of K. & S., of whom plaintiff was assignee. The court charged, in substance, that defendant’s negligence must have been the sole cause of the injury or there could be no recovery; that although defendant’s dam was defective and out of repair and in consequence gave way, if there was,sufficient water in the middle pond when its dam gave way to materially increase the volume and force of the stream, then plaintiff could not recover for injuries to the lower dam, as the damages would be too remote. Held, error. Plaintiff owned the middle dam and in this action sought to recover for injuries thereto as well as to the dam of K. & S. The jury rendered a general verdict for defendant. Held, that this finding did not necessarily establish that, defendant was free from negligence and so make the charge harmless. (Argued February 24, 1874; decided March 24, 1874.) Also, held, that the judgment below could not be affirmed as far as it related to plaintiff’s dam, and reversed and new trial granted -as to injuries to the dam of K. & S. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order reversing an order of Special Term, granting a new trial. This was an action to recover damages for injuries alleged to have been caused by defendant’s negligence in building a mill dam in an unsafe and improper manner and in failing to keep the same in good repair, in consequence of which it gave way and plaintiff’s dam below, upon the stream, was swept away by the accumulated waters. The complaint also contained a count for injuries to the dam of Kingsley & Strong below plaintiff’s, the claim for damages therefor having been assigned to plaintiff. Defendant was the owner of a saw mill and dam upon* a stream in Erie county, his mill pond was a very large one, plaintiff owned a mill and dam with much smaller pond upon the same stream, about eighteen rods below defendant’s. Kingsley & Strong were the owners of another mill and dam still below plaintiff’s; on the 28th September, 1869, there was a severe rainstorm; plaintiff’s evidence tended to show that defendant’s dam gave way and the accumulated waters thus precipitated into the stream tore out plaintiff’s dam, and with the added volume of the waters of the plaintiff’s pond rushed down upon and destroyed the dam of Kingsley & Strong. Plaintiff’s evidence also tended to show that defendant’s dam was unsafely and improperly constructed and that it was out of repair at the time it gave way. Some evidence was given on the part of defendant, that plaintiff’s dam was also out of repair. The court charged among other things, “ it is claimed by the plaintiff, that the lower or Kingsley’s dam went away by reason of the defendant’s dam having given away, and is attributable to that cause only. The defendant claims it cannot be attributable to the giving way of his dam, as the sole cause, and that there were other and contributory causes. If after the first dam gave way, there was another concurring efficient cause to produce the injury on the lower or Kingsley’s dam, then the plaintiff cannot recover for injuries to the lower or Kingsley’s dam, although the jury should find the defendant’s dam was defective and out of repair.” Also, “ that if there was sufficient water in the plaintiff’s dam at the time the defendant’s dam gave way, so as to increase the ■ volume and force of the water in the stream to any material and efficient amount, and it gave more power and force to the stream by adding thereto the waters in the plaintiff’s dam, then plaintiff cannot recover for such injuries to the lower dam for the reason such damages are too remote.” The counsel for the plaintiff duly excepted to these portions of the charge. He asked the court to charge the j ury that if the defendant’s dam gave way by reason of its negligent and improper construction or by its being out of repair and insufficient to resist the ordinary and customary flow of the water in the stream, and that by reason of the breaking away of the defendant’s dam the plaintiff’s dam was broken and torn away, and the water from the two dams tore and broke away the lower, or Kingsley dam, without their fault or negligence, then and in that case the plaintiff was entitled to recover for the damages done to the lower dam. The court refused so to charge and plaintiff’s counsel duly excepted. The jury rendered a verdict in favor of defendant. I. Sam. Johnson for the appellant. A person is not precluded from recovering damages sustained by reason of the wrongful or negligent act of another, because a third party contributed to such injury. (Chapman v. N. H. R. R. Co., 19 N. Y., 341; Colgrove v. N. Y. & N. H. R. R. Co., 20 id., 462; Sheridan v. Brooklyn City & N. R. R. Co., 36 id., 39; Webster v. H. R. R. Co., 38 id., 260; Barrett v. Third Ave. R. R. Co., 45 id., 628; Brehm v. Gt. W. R. R. Co., 34 id., 273-365; McCahell v. Kipp, 2 E. D. S., 413; S. & R. on Neg., § 27; Mott v. H. R. R. R. Co., 8 Bosw., 345 ; Lockhart v. Litenhaler, 46 Penn., 151.) The damages are not too remote. (Sheldon v. H. R. R. R. Co., 14 N. Y., 21; Field v. N. Y. C. R. R. Co., 32 id., 339 ; Webb v. R., W. & O. R. R. Co., 3 Lans., 453; S. C., 49 N. Y., 420; Thomas v. Brackney, 17 Barb., 654; Davis v. Garnet, 19 E. C. L., 212; Lynch v. Nurdin, 41 id., 422; 17 Pick., 78; Scot y. Shepard, 2 W. Black., 292; Vanderburgh v. Truax, 4 Den., 464; Thomas v. Winchester, 6 N. Y., 497; Illidge v. Goodwin, 24 E. C. L., 272; Rex v. Moore, 23 id., 52.) The destruction of the second dam being the natural result of defendant’s negligence he was liable therefor. (Thurbur y. Martin, 2 Gray, 394; Pitts v. Lan. Mills, 13 Metc., 156; Cary v. Daniels, 8 id., 466-476; Field v. N. Y. C. R. R. Co., 32 N. Y., 339 ; Webb v. R., W. & O. R. R. Co., 49 id., 420; Sheldon v. H. R. R. R. Co., 14 id., 218.) Wm. H. Gurney for the respondent. The judge was correct in charging, that if plaintiff contributed to the injury he could not recover. (Hill v. Warren, 2 Stark., 377; Wild v. H. R. R. R, Co., 24 N. Y., 430; Johnson v. H. R. R. R. Co., 20 id., 65; Terry v. N. Y. C. R. R. Co., 22 Barb., 57; S. & R. on Neg., 24, 25.) Plaintiff cannot recover for injuries to the lower dam, because the damages are too remote. (Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Penn. R. R. Co. v. Kerr, 62 Penn., 353; Webb v. R., W. & O. R. R. Co., 49 N. Y., 420.) The judgment can be reversed in part and' affirmed as to the balance. (Tillow v. Kingston, 5 N. Y., 405; Parker v. Van Houten, 7 Wend., 145; Smith v. Jausen, 8 J. R., 111; Fisher v. N. Y. C. & H. R. R. R. Co., 46 N. Y., 644.) [MAJORITY — Grover, J.] Grover, J. As assignee of Kingsley & Strong the plaintiff has succeeded to their rights, and stands in respect thereto in the same position that they would were they the plaintiffs in the action. His right of recovery against the defendant is no more or otherwise affected by his ownership of the dam intermediate that of the defendant and that of the assignors, than would theirs have been had they brought a suit for the injury complained of.' This cause of action must, therefore, be considered and disposed of the same as though the latter were plaintiffs therein. A brief statement of the facts is necessary to understand the application of the charge and refusal to charge in respect to this demand to which exceptions were taken by the plaintiff, which present all the questions in the case. It was proved that the defendant constructed and maintained a dam across the stream in question, which raised, comparatively, a large pond; that the plaintiff had a dam upon the stream, about eighteen rods below, raising but a small pond; that the assignors had a dam across the same stream about a quarter of a mile below that of the plaintiff. Evidence was given tending to show, that the defendant had negligently and improperly constructed his dam and kept the same in an unsafe condition; that there was a rise of water in the stream in September, 1869, which, in consequence of the unsafe and improper condition of defendant’s dam, tore the same out, thereby discharging a large mass of water into the stream, by means of which the plaintiff’s dam and that of the assignors were 'more or less torn out, causing damage to each respectively.- Hpon the entire evidence it was a proper question for the jury whether such were the facts. In reference to these facts the judge charged that if, after the first, defendant’s, dam gave way there was another concurring efficient cause to produce the injury on the lower Kingsley dam, then the plaintiff could not recover for injuries to the lower, or Kingsley dam, although the jury should find the defendant’s dam was defective and out of repair. To this part of the charge the plaintiff excepted. The court further charged that if there was sufficient water in the plaintiff’s dam (the middle dam) at the time the defendant’s dam gave way, so as to increase the volume and force of the water in the stream to any material and efficient amount, and it gave more power and force to the stream by adding thereto the waters in the plaintiff’s dam, then the plaintiff could not recover for such injuries to the lower (Kingsley) dam, for the reason that such damages were too remote. To this part of the charge the plaintiff excepted. Could there be any possible doubt as to the construction of the charge this doubt was removed by the refusal to charge as requested by the plaintiff. The clear meaning of the charge is that, although the defendant had negligently constructed an unsafe dam, and carelessly maintained it in an unsafe condition, thereby confining a large volume of water in his pond, which dam in consequence of its condition broke away, precipitating into the stream a great mass of water which tore out the plaintiff’s dam, and in its onward course tore out the Kingsley & Strong dam, yet the latter could not recover of the defendant if the volume of the water in the stream was materially increased by tearing out the middle (plaintiff’s) dam, as in that case the damages would be too remote. Cases are cited, showing that when a party sustains an injury from the concurring negligence of several he may recover therefor against all or either. (Chapman v. The New Haven R,. R., 19 N. Y"., 341; Colgrove v. Same, 20 id., 492; Barrett v. Third Av. R. R., 45 id., 628.) But the doctrine of the charge is not in conflict with this principle. The right of recovery for the injury to the Kingsley dam was not thereby made, at all, to depend upon the negligence of the plaintiff in respect to the middle dam; had it been so made the cases would be in point to show the error. The ideas conveyed by the learned judge appear to have been, first, that in case the jury found that the defendant’s dam went out in consequence of the negligence of the defendant, this must have been the sole cause of the injury to the Kingsley dam, or there could be no recovery therefor; and second, that assuming this as the sole cause, if in its operation it first tore out the middle dam and thereby increased the volume and power for injury of the water in the stream, the damages to the Kingsley dam would be too remote, and there could be no recovery therefor- The first proposition was erroneous, and well calculated to mislead the jury. Assuming that the defendant was liable on account of his negligence for the consequences of the break in his dam, the inquiry was whether this caused the injury to the Kingsley dam. In other words, whether this injuiy would have occurred in the absence of such break. If it would it was not caused by the break, so as to make the defendant liable; if it would not, it was so caused, and the defendant was liable therefor, although other causes tending to produce the result may have been in operation, which would not have produced it in the absence of such break. Ryan, v. The N. Y. Central R. R. Co. (35 N. Y., 210), and The Pennsylvania R. R. Co. v. Kerr (62 Penn., 353) are cited in support of the second proposition of the charge. In the former it was held that one negligently setting fire to a building upon the lands of another, from which fire was communicated to and destroyed the building or property of a third party, was not liable for the injury to the latter ; such injury not being the probable and necessary consequences of his wrongful act. The rule determining the liability in this class of cases appears to be well settled. The difficulty, when any arises, is in its application to the facts of the particular case. The party is liable for the natural and probable consequence of his wrongful act or omission, but not for those which are remote and speculative. The law will not enter upon inquiries as to the latter for the reason that such a degree of certainty cannot be arrived at in respect thereto as to constitute a safe ground for judicial action. It is for this reason that judicial action is based upon the proximate and not the remote cause of events. Assuming that this rule was correctly applied in the case of Ryan v. The New York Central (supra) — as to which see Webb v, The Rome, Water-town & O. R. R. Co. (49 N. Y., 420) — it comes far short of sustaining the proposition under consideration. Here, upon the hypothesis upon which the proposition was based, the injury to the Kingsley dam was clearly the natural and probable consequence of the break in that of the defendant. By that break an immense volume of water, compared with the size of the stream, was suddenly put in motion in the stream, and in its onward course tore out the plaintiff’s dam, adding thereby to the volume and power for injury of the stream to some extent, and when this volume reached the Kingsley dam produced the injury complained of. It will be seen that the very water that wrongfully escaped through the break in the defendant’s dam, directly caused the injury to the Kingsley dam; and surely the defendant cannot be exonerated from liability from the fact that it had before broken the middle dam and thereby increased the volume and power of mischief. The counsel for the respondent insists that the charge, if erroneous, could not have injured the plaintiff, for the reason that the jury found for the defendant as to the injury done to the middle (plaintiff’s) dam; and that this finding establishes the fact that the defendant was free from negligence in respect to his dam. The answer to this is that there is nothing showing clearly upon what ground the verdict in this respect was based. It may have been upon that claimed by the plaintiff, or upon the condition of the plaintiff’s dam satisfying the jury that it went out from some other cause, or upon some other ground. It is enough that it does not appear that it was on the ground that the defendant was free from negligence. The counsel further insists that as no error is complained of in the judgment for the defendant in respect to the plaintiff’s dam that this part should be affirmed, irrespective of the error in the charge in regard to the injury to the Kingsley dam, and that it should be reversed and a new trial ordered only as to that. The answer to this is that the plaintiff had the right to unite all the causes in one action, and that in case he succeeds in recovering upon either a sum entitling him to costs, he is not only entitled to recover his costs of the action, but relieved from the payment of the costs of the defendant. Besides, there is no precedent or law authorizing such a disposition of a case situated like the present. The judgment and order of the General Term, denying a new trial, must be reversed and a new trial ordered, costs to abide the event. All concur. Judgment reversed.