
    Henry Carhart, Appellant, v. The State of New York Respondent.
    Third Department,
    September 18, 1906.
    Tort — overflow of lands by waters from State canals — measure of damages when injury results from separate causes—evidence insufficient to apportion damage between two causes.
    When damage to lands is caused partly by the negligence of State employees in discharging water from a canal aqueduct and partly by the unavoidable overflow from such aqueduct caused by excessive rains, the State is not liable for the whole damage, but only for the part thereof caused by the negligence of its employees; and this the claimant must affirmatively prove.
    When it is difficult to establish the exact amount of damage caused by each of two contributing causes, for only one of which the defendant is liable, the jury may be allowed great latitude in estimating the amount of damage attributable to each.
    But when the State attempts to prove the amount of unavoidable damage caused by rains on mere expert testimony founded upon calculations of the rainfall in other localities, the evidence is incompetent, being too remote, for the rainfall in different localities is not necessarily the same.
    Appeal by the claimant, Henry Carhart, from a judgment of the Court of Claims of the State of Hew York in favor of the claimant, bearing date the 16th day of October, 1905, and entered in the office of the clerk of said court on the ground of the insufficiency of the damages awarded. ,
    The claimant was in 1901 the lessee of a farm through which ran Limestone creek, which runs under the Erie canal near Minoa, 1ST. Y., about one mile south of and above said farm. The canal crosses said creek by means of an aqueduct, in which are maintained four large waste gates, which, when open, permit large quantities of Water to discharge .into said Limestone creek above said premises; From -said creek above the said canal was constructed a feeder known as the Fayetteville feeder; In the sides of said feeder were four other large gates, through which; when' opened, quantities of water were discharged back, into Limestone c-reek.' In May and June, 1901, the water in said canal being above high-water mark, the waste gates in said feeder and the aqueduct gates in said, canal were opened, causing large amounts of water to flow into Limestone creek, which, it is' claimed by the claimant, caused the overflow upon his land and his damage. The Court of Claims has found that the act of the State was negligent and that the claimant is - entitled to recover of the State the sum of sixty-eight dollars and twenty cents. This amount is just one-tenth of the damage as-proven by the claimant. In the opinion of the Court of Claims it was stated as found that the waters from the canal constituted oUetenth of the .flow of Limestone creek. Further facts appear in the opinion. '
    
      George H. Sears, for the appellant;
    
      Julius M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the respondent.
   Smith, J.:

The claimant insists, first, that the proof shows that the injury was entirely caused by the overflow r.esiilting from the negligent pouring of the water from the canal into the creek, and, again, even if the creek would otherwise have overflowed that the damage which he has sustained cannot be separated or apportioned — a part to the-natural overflow and a part to -the overflow caused by the negligence of the State.. He, therefore, claims that the State in any event is liable to him for all his damages. It is found as a fact by the trial court that apart from the waters which were negligently permitted to flow into the creek from the canal the high water would have caused an overflow of Limestone creek and have caused part of the damage. This finding is not without support^ in the evidence. The question is then presented whether the State is liable for all the damage caused in part by the natural overflow of the creek and in part by the overflow resulting ' from the negligence of the State in negligently permitting the waters of the canal to flow therein. '

• In Ring v. City of Cohoes (77 N. Y. 83) the head note in part reads: “ Where several proximate causes contribute to an accident, and each is an efficient cause, without which the accident would not have happened, it. may be .attributed to all or any of them; but it cannot be attributed to a cause unless without its operation the accident would not have happened.” This rule of law is approved in Ehrgott v. Mayor (96 N. Y. 283) and Rider v. Syracuse R. T. R. Co. (171 id. 155). In Searles v. Manhattan Railway Co. (101 N. Y. 661) the rule of law is stated : “ When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was producéd by the former cause.” In Taylor v. City of Yonkers (105 N. Y. 208) Judge Finch, in'writing for the court, approves the rule as stated in Ring v. City of Cohoes (supra), and further says : “ The question involved has been quite earnestly debated in other States where it arose under statutes requiring towns to keep the streets safe and convenient. In Maine and Massachusetts it is held that if, besides the defect in the way, there is-also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. (Citing cases.) These rulings are based largely upon two grounds, that the town is liable for the defect alone, and that the proportion of injury due to that cause is impossible to be ascertained. A contrary rule is held in Vermont and New Hampshire. (Citing cases.) We have already stated the rule to be in this State that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury there is no difficulty; but where there is also another, for which no one is responsible, we have held that ‘ the plaintiff must fail if his evidence does not show that the damage was produced by the former cause.’ ”

These authorities establish the proposition that if this injury would have happened .irrespective of defendant’s' negligence the defendant is not liable for any damage, although its negligence contributed thereto. It would seem to follow, as a necessary corollary to this proposition, that if any part of these damages would have resulted, irrespective of defendant’s negligence, for such part of the ■ damage the defendant is not liable. The problem, is then presented to determine what part, if any, of the damage would have resulted irrespective of the defendant’s negligence. When this amount is ascertained the difference between such amount .and the damage actually suffered would seem to measure the liability of the' State. It is not necessary here to hold these propositions where the injuries were caused by two proximate efficient causes, both negligent or wrongful acts. The rule of damages here stated does not seem to have been adopted by the trial court."

These conclusions seem to be in accord with the following cases •: Wallace v. Drew (59 Barb. 413); Little Schuylkill Navigation C. v. Richards’s Administrator (57 Penn. St. 142). In the case last-cited damages were sought by reason of the fall of a dam, with deposits of coal dirt from different mines on the stream above the dam, worked by persons having no connection with each other and with no concert of action. It was held that, they were not jointly liable for the combined results of throwing coal dirt into the riv'er; that the tort of each was several when committed and that they did not become jointly liable for all the consequences; Agnew, J., in criticising the decision of the court below, says : “ The doctrine of the learned judge is somewhat novel, though the case itself is ,new; but, if correct, is well calculated to alarm all riparian owners, wh.o may find themselves by a slight negligence overwhelmed by others-in gigantic ruin.” Again: “True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may -form some guide and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand.” (See, also, St. Louis, I. M. & S. Railway Co. v. Morris, 35 Ark. 628; Stewart v. Schneider, 22 Neb. 286.) In Workman v. Great Northern Railway Company (32 L. J. Q. B. 279) the Court of Queen’s Bench at the Trinity Term' held, where in consequence of a railway embankment the flood waters of a river were pent back and flowed over plaintiff’s -land, but that without the embankment the water would have reached plaintiff’s land and done damage to a lesser amount, that the plaintiff could recover the difference between the damage done and what would have been the damage had not the embankment been there. Chief Justice Cockburn for. the court says: “ The question is, what is the damage which the plaintiff has sustained by the wrongful act of the defendants % If the water-had flowed in its natural course it would have caused 72Z. 10s. damage to the plaintiff, and in consequence of the diversion by the defendants the plaintiff liás not only sustained that amount of damage, but léol. 10s. more. In estimating the amount of damage resulting from the act of the defendants we must take into account what would have been the damage which in the ordinary course of nature would have been occasioned by such a flood as must necessarily have occurred. Taking that to have been ascertained by the arbitrator, I think that ought to be deducted from the total amount of damages.” Whitman, J., says: The damage is primarily occasioned by the flood. If no works had been wrongfully erected by the defendants, the flood would have done damage to the amount- of 721. 10s. In consequence of the wrongful act of- the defendants, the damage which the flood has done to the plaintiff is increased by the amount of 1151. 10s., and that is therefore the measure of damages.” In Nitro-Phosphate Co. v. London & St. Katherine Docks Co. (1 Eng. R. C. 283, 288). this case is' approved, and it was held that the proportionate part of the damage due to defendant’s wrong must be-ascertained as accurately as possible. In O'Donnell v. City of Syracuse (181 N. Y. 1) Judge Gray, in reversing tile judgment of the Appellate Division, says: “ The municipality was chargeable only with that much of the damage which was caused by its wrongful acts, and if the damage was incapable of separation and the proportions of liability could not be established, that fact affords no reason for holding the city responsible for the tortious acts of others.” It may be impossible to reconcile the cases upon this vexed question.. The tendency of modern judicial decision, however, is toward an endeavor to make a party answerable only for the damage caused by its own negligence. On the other hand, the court will be slow to deny relief to the plaintiff by reason of the difficulty in establishing the exact proportion of damage caused by a defendant’s wrongful or tortious act. The jury will be allowed much license in estimating the extent of damages ■ attributable thereto. They must apportion the damage as best they can:

The damages found by the trial court seem to be based upon incompetent evidence.. The amount of water flowing through Limestone creek at that time is based entirely upon the evidence of experts who have founded their opinions upon hearsay and incompetent testimony. The records which were put in evidence, and upon which these opinions were founded, .were properly stated by the presiding judge of the court below to have been insufficiently authenticated. . The records were of the amount of water which fell into the Chittenango Creek valley, a valley seven or eight miles east of the valley of Limestone creek, and the deduction as to the amount of water flowing through Limestone creek was- founded purely upon a comparison of the area of the watershed of Limestone creek with that of Chittenango creek. This, in our judgment,. is too remote upon which can be founded any determination as to the amount of water which passed down Limestone creek upon that day. 'The evidence shows that these waters were caused by various showers, and it is a matter of common knowledge that' these showers are many times so far.local that a large amount of water will fall in one valley and a much lesser amount in. another Valley contiguous thereto. This fact presents too much uncertainty for the comparison made by the State’s- witnesses, upon which the judgment'was based.

The judgment is, therefore, reversed and a new trial ordered, with costs.

All concurred.

Judgment reversed and new trial granted, with costs.  