Lamming v. Galusha

• Decision Date: 04 October 1892
• Citation: 135 N.Y. 239,31 N.E. 1024
• Parties: LAMMING v. GALUSHA et al.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 239

31 N.E. 1024

LAMMING

v.GALUSHA et al.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, fifth department.

Action by David A. Lamming against Norman H. Galusha and others for an injunction restraining the operation of a steam railroad in a highway, and also for damages for a personal injury sustained by reason of such operation. At the special term, defendant's demurrer to the complaint for misjoinder of causes of action was overruled, and defendants appealed. From an interlocutory judgment of the general term, reversing the special term, (17 N. Y. Supp. 328,) plaintiff appeals. Reversed.

Henry W. Conklin, for appellant.

Cassius C. Davy, for respondents.

ANDREWS, J.

The question presented by the demurrer is whether, in an action for maintaining a nuisance in constructing and operating a steam railroad in a public highway without authority, brought by the owner of lands injuriously affected by the road, and whose property rights are invaded thereby, in which the plaintiff demands relief by way of injunction, and special damages to his real property occasioned by the nuisance, he may claim in the same action damages for a personal injury sustained from the operation of the road, without negligence on his part, from being thrown from a wagon while driving along the highway on which the railroad was constructed, in consequence of his horses being frightened by the noise of a passing engine and train, and escaping from his control. The demurrer is for an alleged misjoinder of these causes of action. The allegations in the complaint relating to the personal injury are not separated from the other allegations therein relating to the injury to the real property, so as in form to constitute a separate cause of action, but are blended with them. But a defendant is not deprived of the right to demur to a complaint for misjoinder of causes of action distinct in themselves, and which cannot be united because they are not separately stated or numbered. Goldberg v. Utley, 60 N. Y. 427. It is well settled that any unauthorized and continuous obstruction to a public highway constitutes a public nuisance, (DENIO, J., Davis v. Mayor, etc., 14 N. Y. 524,) and an action for damages lies in favor of any person sustaining a special in,-jury in his person or property therefrom, against the party who erected or maintained it. There can be no doubt that the plaintiff could have brought an ordinary legal action for damages for personal injury, based upon the allegations in the complaint. The complaint contains no allegation of negligence on the part of the defendants in the operation or management of the train at the time of the alleged injury; nor was this necessary. Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant, unless in exceptional cases, is not material. Congreve v. Smith, 18 N. Y. 82;Clifford v. Dam, 81 N. Y. 56. The general term seems to have been under a misapprehension in supposing that the complaint set out a cause of action for the physical injury of the plaintiff, based on negligence. This was not the gravamen of the complaint. The complaint alleges the unlawful obstruction of the highway, and then follows an enumeration of the injuries sustained by the plaintiff to his real property by reason of the nuisance, and of the physical injury, stating time, place, and circumstances. If the sole...