
    Blaine G. Snook et al., Plaintiffs, v. New York Central and Hudson River Railroad Company, Defendant.
    (Supreme Court, Monroe Trial Term,
    April, 1915.)
    Negligence—liability of railroad — exercise of ordinary care as to ditch and culvert along its right of way—when not liable for damages caused by fire — damages.
    The liability of a railroad company whose negligence was the natural, direct and proximate cause of a fire which started in one building and extended to another is not limited to the damages occasioned by the destruction of the first building, but the company is liable for all the resultant damages from the fire.
    A railroad company must exercise ordinary care to see that a ditch and a culvert constructed along its right of way to carry off surface water are in such condition that it will not be dammed up and set back on the lands of adjoining owners to their damage.
    Plaintiff maintained for business purposes certain buildings adjacent to the defendant railroad’s right of way and in one of them was stored lime delivered by defendant which constructed a ditch along its right of way and also a culvert sufficient to carry off all water collected in the ditch under ordinary conditions. During an unusual rainfall the water became dammed up and set back on plaintiff’s land, reached the lime, producing heat which set the building on fire and practically all of plaintiff’s buildings adjoining defendant’s property, together with their contents, were destroyed. No prior difficulty with the culvert had been brought to the knowledge of defendant or its employees. Held, that defendant was not chargeable with negligence in maintaining the ditch and culvert and was not liable for the damages occasioned by the fire.
    Motion by defendant for a new trial on the minutes. Miller & Bentley, for plaintiffs.
    Harris, Beach, Harris & Matson (David C. Munson, of counsel), for defendant.
   Clark, J.

The Rome, Watertown and Ogdensbnrg division of defendant’s railroad runs in an easterly and westerly direction through the northern part of Monroe county and, at a station called Walker, plaintiff Snook owns a small tract of land adjoining defendant’s right of way on the south. On this tract of land Mr. Snook had, prior to March, 1913, several buildings which he used in the produce business conducted by him at that station. One of the buildings was called the lime shed, and in it he had stored some fifty odd barrels of lime, which had been shipped to him over defendant’s railroad, and which had been delivered to one of his buildings by defendant over a switch which was used by Mr. Snook in the conduct of his business as a shipper of produce from said station.

The general slope and drainage of the land in that vicinity is toward the north—-toward Lake Ontario — and prior to the construction of defendant’s railroad all drainage waters from lands in the vicinity under consideration naturally drained northerly. When the railroad was constructed many years ago it interfered with this natural flow of drainage waters to the north, and evidently for the purpose of collecting surface waters which would reach or be accumulated on its right of way defendant constructed a ditch on its land, commencing about 100 rods east of lands of plaintiff Snook, and continued it westerly on its right of way, parallel with and south of its tr'acks to a point several feet east of the south end of a culvert which defendant had maintained for years, which served the purpose of conveying waters collected in this ditch under defendant’s tracks to the north side thereof.

At a point a few feet east of the south end of this culvert this railroad ditch curved southerly to a point near the south line of defendant’s right of way, and then continued its course westerly to a point directly south of the south end of the culvert, when the ditch turned to the north and ran ten or fifteen feet to the south end of the culvert, so the waters collected in the ditch passed through the culvert under the tracks to the north side, as above' stated.

The land of Mr. LaBarron joined Snook’s land on the east, and also defendant’s right of way on the south. There is a depression in LaBarron’s land near the east end of Snook’s property, and very near one or more of the buildings that were located thereon.

It is the contention of defendant that the surface waters in that vicinity collected in this natural depression and reached the railroad land at a point directly opposite the south end of the culvert, and that consequently any surface waters which naturally drained into this depression would be conveyed directly across defendant’s right of way into the-southerly end of the culvert, and were, therefore, not collected in its ditch.

The contention of plaintiffs is that this depression on LaBarron’s land strikes defendant’s ditch at a point fifteen or more feet easterly of the south end of the culvert, and that, therefore, surface waters which naturally drained from LaBarron’s lands were collected in defendant’s ditch several feet east of the culvert, and were conveyed to it through the ditch.

In March, 1913, there was an unusual rainfall in this vicinity, and in the forenoon of March twenty-fifth plaintiff -Snook observed that the culvert was not carrying off the accumulating waters, and that they were being dammed up on the south side of defendant’s right of way and set back onto his property, and LaBarron’s property, which adjoined defendant’s right of way. He at once notified defendant’s station agent at Walker, the only person in charge of defendant’s business at that point, and he agreed to notify the defendant’s local section foreman and have the obstruction at the culvert removed. Nothing was done in that regard until late in the afternoon and the waters were continually rising and at that time reached a point near, if not quite, to some of Snook’s buildings. He again notified the station agent of the situation, but the section foreman was not in the vicinity and nothing was done with reference to relieving the conditions at the culvert, and on the morning of March twenty-sixth, owing to the clogged condition of the culvert, the accumulating waters were dammed up and set back on Mr. Snook’s property, and reached his buildings, among them being the lime shed in which he had stored the lime above mentioned. This shed was on abutments some eighteen inches above the ground.

The waters continued to rise until they reached the floor of the building- and, finally, reached a height of six inches around the standing barrels of lime. When the water reached the lime, by chemical processes explained by witnesses on the trial, heat was produced which resulted in setting the lime building on fire, and practically all the buildings owned by Mr. Snook on this small tract of land adjoining defendant’s property, with their contents, were destroyed.

The value of the property was conceded, so the jury was not troubled with the question of damages, but the questions of defendant’s negligence, the contributory negligence 'of plaintiff Snook, and the question of whether or not defendant’s negligence, if any, was the proximate cause of this conflagration, were submitted to the jury, and on all the propositions the jury found for the plaintiffs, and they recovered a verdict for the damages — the value of the property as stipulated, the plaintiffs being the owners of the property destroyed, and several insurance companies had paid losses under their policies held by Snook at the time of the fire, they being subrogated to the amounts paid.

Defendant moved for a n-ew trial on the minutes, alleging that its negligence was not established, and that, even if it was, its negligence was not the proximate cause of the fire.

Moreover, defendant urged that even though it was negligent, and its negligence was the proximate cause of setting fire to the lime shed, the damages ■ should be limited to those resulting from the destruction of that building, and could not, under any circumstances, be extended to the damages resulting from the destruction of the other buildings and contents.

As to the question of the contributory negligence of the plaintiff Snook, it was clearly a question of fact for the jury, and the finding on that question is supported by sufficient evidence.

As to the proposition urged by the learned counsel for defendant, that even though it was negligent, and its negligence was the proximate cause of the fire, the damages should be limited to those occasioned by the destruction of the first building, I dio not think such a conclusion would be justifiable under the evidence in this case.

The buildings of plaintiff Snook were on one parcel of land adjoining the railroad right of way, and if the evidence was sufficient to justify the finding that defendant was negligent in not keeping its ditch and culvert in proper condition, and that such negligence was the natural, direct and proximate cause of the fire which resulted in the destruction of Mr. Snook’s property, then defendant would be liable for all the damages which were the direct, natural and proximate result of its negligence, and they would not be limited to damages resulting from the destruction of the first building. Jamieson v. N. Y. & R. B. R. Co., 11 App. Div. 501; Jacobs v. N. Y. C. & H. R. R. R. Co., 107 id. 134; 186 N. Y. 586; Branson v. N.Y. C. & H. R. R. R. Co., 111 App. Div. 737; Hinds v. Barton, 25 N. Y. 544; Collins v. N. Y. C. & H. R. R. R. Co., 132 id. 603; People v. N. Y. C. & H. R. R. R. Co., 155 App. Div. 699; 13 Am. & Eng. Ency. of Law (2d ed.), 452.

There was evidence which would justify the finding that the culvert in question was structurally defective, but it was not shown that it had not been sufficient for all ordinary purposes — that is, it was shown that it had always been a sufficient culvert to convey to the north side of defendant’s tracks all the waters which had been collected in its ditch under ordinary conditions. In fact, as I recall the evidence, it nowhere appeared that the culvert had ever failed to convey to the north side of the track all waters which had been collected in defendant’s ditch, whether these waters came from defendant’s right of way or from lands of adjoining owners, and there was no proof that defendant had previous knowledge or notice of any defect in the culvert.

At the time Mr. Snook’s buildings were destroyed conditions were unusual and exceptional. A heavy rainfall had occurred, the heaviest storm of its kind that had been known in this vicinity in upwards of forty years, the rain was heavy and continuous for many hours, and this culvert, which had been sufficient under ordinary conditions to convey to the north side of defendant’s tracks all waters which had been collected in its ditch, proved inadequate to take care of the tremendous volume of water which resulted from this unusual rainfall.

Primarily defendant owed no duty to the plaintiff Snook, or any other adjoining owner, with reference to the surface waters from their lands. Sabetto v. N. Y. C. & H. R. R. R. Co., 127 App. Div. 832.

It having constructed a ditch along its right of way, if it actively collected these surface waters, it was obliged to exercise ordinary care to see to it that this ditch and culvert were kept in proper condition, so that waters it had collected would not be dammed up and set back on lands of adjoining owners to their damage. It was not obliged to exercise active vigilance in this regard, and it was not the' insurer of the safety of the property of adjoining owners. Its duty was simply that of ordinary care and to guard against accidents which might reasonably be expected or anticipated.

Now was this fire, which undoubtedly resulted from water coming in contact with lime stored in Mr. Snook’s lime shed, an injury of such' a nature that a reasonably prudent man would expect or anticipate it? I think not. If there had ever been any prior difficulty with this culvert which had been brought to the knowledge of defendant or its employees, it would present a very different situation, but here, where the culvert in question had always been sufficient to convey the waters collected in defendant’s ditch to the north side of its tracks under ordinary conditions, to hold that the injury resulting from this choking up of the culvert when the rainfall was exceptional and unusual was something that might have been expected or anticipated, would be holding the defendant responsible as an insurer of the property of adjoining owners, and I do not understand that that is the rule or the law.

In Lowery v. Western Union Telegraph Co., 60. N. Y. 198, the court said: The law does not undertake to hold a person who is chargeable with a breach of duty toward another, with all the possible oonsequences of his wrongful act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of.”

And again in Hoffman v. King, 160 N. Y. 618, the court said: “ The damage must be the proximate result of a negligent act. It must be such as the ordinary mind would reasonably expect as a probable .result of the act, otherwise no liability exists.”

In view of the fact that the culvert in question, the negligent maintenance of which, on the part of defendant, plaintiffs allege was the cause of the fire in question, had always been sufficient to take care of the surface waters collected by defendant in its ditch, and that there had never previously been any difficulty, but that the waters which were set back on plaintiffs’ lands at the time of this fire resulted from a sudden, unexpected and very unusual rainfall, I do not think it can be said under all the evidence in this case that a reasonably prudent man would have expected or anticipated the fire and damages in question. That is, the injury .suffered by plaintiff Snook could not have been anticipated or expected by reason • ably prudent men, and the finding of the jury that defendant was negligent under the circumstances, and that its negligence was the proximate cause of this fire, without which it would not have occurred, was contrary to and against the weight of the evidence. It was in the highest degree speculative for the jury to say, in view of the tremendous volume of water which fell at that time as the result of that storm, that waters actively collected by defendant in its ditch were the direct and proximate cause of this fire.

It impresses me that if defendant was negligent, and its negligence was the proximate cause of plaintiffs’ misfortune, defendant would be responsible for all the damages which resulted directly from its negligence, but under all the evidence in this case, the finding that defendant was negligent and that the damages complained of were the direct and proximate result of such negligence, without which they would not have occurred, was not justified by the evidence.

To hold defendant responsible for the result of this unusual, unexpected and unprecedented rainfall would be to make it the insurer of the safety of property of adjoining landowners. That 'obligation defendant did not assume and could not, under the law, be made to assume.

The motion for a new trial must be granted, with costs to abide the event.

Motion granted, with costs to abide event.  