10 D.C. 517 (D.C.D.C. 1879), 15,016, Nottingham v. The Baltimore & Potomac Railroad Co.

Docket NºAT LAW.— 15,016.
Citation10 D.C. 517
Opinion JudgeMr. Justice WYLIE
AttorneyJames McD. Carrington and E. C. Carrington , for plaintiff. Enoch Totten , for defendant.
CourtSupreme Court of District of Columbia

Page 517

10 D.C. 517 (D.C.D.C. 1879)




AT LAW.— No. 15,016.

Supreme Court, District of Columbia.

September Term, 1879

I. Certain acts of Congress authorized the Baltimore and Potomac Railroad Company to extend its line of railroad into the District of Columbia, and along K street in the city of Washington, upon the established grade of said street. The plaintiff was a lot-owner on K street, and sued the company for damage caused to his property by the neglect of the company to provide proper means to carry off the water, which formed into pools and deep holes in front of and near said property in consequence of the embankment of the road. That said embankment also rendered the plaintiff's lots inaccessible and useless as places of business or residence: Held , That as the road was built in conformity to a grade which had been prescribed by acts of Congress, it was therefore a lawful road, and the damages resulting therefrom must be borne by the lot-owners.

II. Had such road been constructed without law, or had it not been constructed in the manner prescribed by law, and special injury had been sustained by the plaintiff, this would have been a good ground for damages.

III. Where an injury is the result of a common nuisance, it is not a ground of action for damages unless the plaintiff can prove some injury to himself, of a character different in kind from that common injury which he may have sustained with the rest of the public by reason of such nuisance. And this special injury must be something not merely differing in degree, but in kind, from that which is common to all. This doctrine applied in a case where it is alleged that railroad crossings at the junction of streets in a city were neither safe nor convenient for the passage and transportation of persons and property across and along the same.


The action was brought by the plaintiff to recover damages alleged to have been caused by the defendant in constructing its railroad along K street, in the city of Washington. The plaintiff is the owner of certain lots at and about the intersection of Third and K streets and Canal and K streets, where the injury complained of took place. The pleadings in the cause, and the acts of Congress by virtue of which the company extended its road into the District of Columbia and along K street, are sufficiently set forth in the opinion of the court, and it is only necessary to add that at the close of the testimony the court instructed the jury as follows:

" 1st. If the jury believe from the whole evidence that the plaintiff was the owner of the real estate in the declaration described at the time of the construction and location of the defendant's road in the declaration set forth, and was then, and ever since then, the fee-simple owner thereof, and that the said road upon said street was constructed by defendant upon the grade established by law, and in consequence of the construction of said road as aforesaid water collected near the plaintiff's said property, by which it was frequently flooded, and which caused holes, gullies, excavation, gravel, filth, dirt, and mud to be formed and to collect near to the said property of the plaintiff, rendering the same difficult of access, inconvenient, unpleasant, and uncomfortable, and subjecting the plaintiff to annoyance and expense; all of which the defendant might have prevented by the exercise of proper skill and care in providing reasonable means for carrying off the same, but failed to do so,— the jury should find for the plaintiff and allow him damages commensurate with the loss and injury he has sustained thereby, for one year previous to the bringing of this suit.

" 2d. If the jury believe from the evidence that the defendant, at the intersection of Third and K streets, failed to provide proper crossings and passage-ways, and at the intersection of Canal and K streets failed to provide either crossings or passage-ways, and they further believe that the said Canal street, at the said intersection with K, was, anterior to the construction of defendant's said road, used as a public street, and in consequence of their said failure to provide proper crossings and passage-ways, the said property of the plaintiff was rendered inaccessible, or difficult and dangerous of access for vehicles of any kind, thereby causing to the plaintiff in the use and enjoyment of his said property special and peculiar damages, then they shall find for the plaintiff, and assess his damages commensurate with the loss and inconvenience he has sustained thereby, for one year previous to the bringing of this suit."

Exceptions were noted to the granting of these prayers, and the chief justice presiding at the trial, in addition thereto, instructed the jury, among other things, as follows:

" You will inquire what material damage to the comfort; damage to the health, if any damage has been sustained there; damage to the convenience of access to the habitation of the plaintiff; and when you have found out what it is, as well as you can, in light of the proof before you, and when you have found out that the defendant is the cause of it, report it here in favor of the plaintiff in that amount. If, on the other hand, you should find that the defendant entered into the occupation of that street for railroad purposes under the license of the law, and in laying the foundations for its track increased the altitude of the street in its grade, and provided adequate and ample means for the escape of the water, you will find a verdict for the defendant.

" Again, if you find from the testimony that the defendant did not provide a reasonable, secure, and comfortable crossing, or, in the language of the law, proper crossing at the intersection of the streets across which they travelled with their railroad, and, in addition, find that the neglect to make that crossing had an individual effect to prevent the plaintiff's access to his property, as distinguished from the embarrassment to the community at large— for that is what this distinction we have been talking about means— you will add that to the account of damages that relate to the crossing of K street."

To which instructions the defendant, by its counsel, then and there, and before the jury retired, duly excepted; which exception was noted upon the minutes of the court.

The verdict of the jury was for the plaintiff for the sum of five hundred dollars.

The defendant now moves for a new trial on the foregoing exceptions, which have been duly signed and sealed.

James McD. Carrington and E. C. Carrington , for plaintiff.

In support of the two propositions— first, that a railroad company is responsible to a citizen for injury to his property resulting from the negligent and unskillful construction or management and conduct of its road; second, that a railroad company creating a nuisance, not the natural and necessary consequence of its business, but resulting from negligence, either in the construction or management of its road, or in the commission of some act prohibited by law, or in the omission of some act required by law, is responsible in damages to the citizen who suffers thereby special and peculiar damages, that is to say, damages different from the community generally, or greater than any one else in the community— the plaintiff, by his counsel, refers to the following authorities: Tate v. Ohio and Mississippi Railroad , Porter, 7 Ind. 479, 38; La...

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