Booth v. Rome, W.&O.T.R. Co.

• Citation: 140 N.Y. 267,35 N.E. 592
• Parties: BOOTH v. ROME, W. & O. T. R. CO.
• Decision Date: 02 May 1893
• Court: New York Court of Appeals

140 N.Y. 267

35 N.E. 592

BOOTH

v.ROME, W. & O. T. R. CO.

Court of Appeals of New York.

Dec. ,5, 1893.

Appeal from supreme court, general term, fifth department.

Action by Sophia Booth against the Rome, Watertown & Ogdensburg Terminal Railroad Company for injury to property. From a judgment of the general term (17 N. Y. Supp. 336) affirming a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by ANDREWS, C. J.:

This appeal is from a judgment of the general term of the fifth department affirming a judgment on verdict for the plaintiff. The principal facts upon which the question presented arises are as follows: The defendant is a railroad corporation organized under the general railroad law of this state. In 1887 it owned a lot in the city of Rochester extending from the west side of St. Paul street to the Genesee river, adjacent to a lot owned by the plaintiff on the south, purchased by her in 1885, on which was a dwelling occupied by her, fronting on St. Paul street, the north side of which was about six feet south of the north line of her lot. The defendant projected an extension of its road from a point east of St. Paul street to the Genesee river, and thence across the river by a bridge. It obtained the consent of the municipal authorities to cross St. Paul street by a tunnel or cutting, and proceeded to extend its road across the street to the river. Its line crossed St. Paul street from a point on the east side of the street opposite the lot of the defendant, striking the center of the defendant's lot on the west side, and thence ran longitudinally through the lot to the bank of the river. It became necessary, in order to comply with the conditions imposed by the city authorities, that the defendant's roadbed at the crossing should be depressed 15 feet or more below the surface of the street. The excavation required for this purpose involved also the necessity of continuing the cutting through the lot of the defendant so as to procure a uniform grade. The soil extended about 10 feet below the surface, and underlying that was rock, which it became necessary to remove to the depth of about 4 feet. It was loosened by blasting with gunpowder. It was claimed by the plaintiff, and evidence was given tending to show, that in consequence of the blasting the plaintiff's house was seriously injured; that the foundations were cracked, the beams and joists pulled apart, the plaster loosened, and that, generally, the house was wrenched, and rendered insecure. It is not claimed that any rock or materials were thrown by the blasts upon the plaintiff's lot. In what particular way the injury was produced was not shown. It may be inferred that it was caused by the jarring of the ground or the concussion of the atmosphere created by the explosions, or by both causes combined. It was, however, affirmatively proven, without contradiction, that there was no disturbance of the earth on the sides of the excavation, and that gas and water pipes in the street, exposed by the excavation, were not displaced or injured. It was substantially conceded that the defendant exercised due care in conducting the blasting, and that it was necessary in order to remove the rock. There was evidence tending to show that the persons engaged in the work were informed from time to time during its progress that injury was being done to the plaintiff's house. The trial judge instructed the jury that the defendant, in using powerful explosives in blasting the rock, used them at its peril, and that if the plaintiff's house was injured thereby the defendant was liable for the damages occasioned, and ‘that it made no difference whether the work was done carefully or negligently.’ Exception was taken by the defendant to this instruction. The jury found that the damage to the house from the blasting was $1,750, and this sum was included in the verdict. The court overruled the contention of the defendant that in constructing its road it was acting under legislative authority, and was on that ground, in the absence of negligence, exempted from liability, even although, as between individuals, an action might be maintained. Other facts are stated in the opinion.

P. M. French, for appellant.

David Hays, for respondent.

ANDREWS, C. J., (after stating the facts.)

We entertain no doubt of the correctness of the ruling at the circuit that the defendant stands in no better position in defending the action than if the controversy was between individuals. The rule that the legislature may, in the public interest and for public purposes, authorize and legalize acts causing consequential injury to private property, not amounting to a taking, without providing compensation, and that the legislative authority may be pleaded in bar of any claim for indemnity, although if the act had been done without such authority an action would lie, has no application to acts of a railroad or other private corporation in the execution of chartered or statutory powers. The rule adverted to, although operating in some cases with great severity, which compels an individual to bear a special loss for the benefit of the community at large, in place of distributing the burden, is an application of the maxim, ‘salus populi est suprema lex,’ and rests upon the transcendent power of the legislature, within constitutional limitations, to enact whatever it may deem essential to the public welfare. But while there are decisions which give countenance to the view that an authority conferred upon a railroad corporation to construct a railroad carries with it immunity from liability in executing the work for consequential damage to private property, to the same extent as pertains to the sovereign in executing public works, (Bellinger v. Railroad Co., 23 N. Y. 42,) it is now the settled doctrine in this state that the powers granted to such corporations are to be construed as privileges conferred, but upon the understanding that they shall be exercised in strict conformity to private rights, and under the same responsibility as though the acts done in execution of such powers were done by an individual, (Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537.) This doctrine accords with reason, and with the presumed intention of the legislature. The franchises of a railroad corporation are conferred in consideration of supposed public benefits which will result from the construction of its road. The projectors of such an enterprise are moved by considerations of personal advantage. To acquire corporate character and privileges, they are willing to subject themselves to certain public duties. But it is quite unreasonable that in executing its corporate powers the corporation should be exempted from liability for injuries to private property, as though it was acting as a strictly public agent. There may be limited exceptions, as in cases of highway crossings, where an adjustment of the grade becomes necessary, working a consequential injury to adjacent landowners, which is remediless; and the legislative authority will also bar any remedy for certain discomforts consequent upon the necessary operation of the road, such as noise and smoke of passing trains. We therefore agree with the courts below that the right of the plaintiff to recover in this case, and the liability of the defendant, depend upon the same rule as would govern the parties if both were natural persons, and the injury to the plaintiff's dwelling had resulted from blasting by an adjacent owner on his land in the course of adapting it to individual uses.

The plaintiff, upon the findings of the jury, sustained a serious injury. It is true that witnesses on the part of the defendant gave evidence tending to shwo that the house was imperfectly constructed, and that the foundation walls were giving way before the excavation was commenced. But, the verdict having been affirmed by the general term, there can be no controversy here that the blasting caused damage to the house to the amount of the verdict. But mere proof that the house was damaged by the blasting would not alone sustain the action. It must further appear that the defendant, in using explosives, violated a duty owing by him to the plaintiff in respect of her property, or failed to exercise due care. Wrong and damage must concur, to create a cause of action. If the injury was occasioned by the omission to use due care, this alone would sustain the action, even if the right of the defendant to use explosives in removing the rock was conceded. If one, by carelessness in making an excavation on his own land, causes injury to an adjoining building, even where the owner of the house has no easement of support, he will be liable. Leader v. Moxton, 3 Wils. 460; Lawrence v. Railway Co., 16 Adol. & E. (N. S.) 643-653; Leake, Real Prop. 248. The law exacts from a person who undertakes to do even a lawful act on his own premises, which may produce injury to his neighbor, the exercise of a degree of care measured by the danger, to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor's rights. This would be reasonable care only under the circumstances. If it was practicable, in a business sense, for the defendant to have removed the rock without blasting, although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that was being done, have been bound to resort to some other method. There is evidence that rock from some parts of the excavation was loosened by the use of iron bars, and, if this was practicable as to all of it, the jury might well have found that this means should have been adopted. So, also, if less powerful blasts might have been used,...