
    EPHRAIM DRUCKER, Respondent, v. THE MANHATTAN RY. CO., and THE METROPOLITAN ELEVATED RY. CO., Appellants.
    
      Elevated railroads—evidence in actions for damages to property—personal knowledge of jury as to ordinary use of street—matters accruing after action brought—Rule when damages resulting from lawful and unlawful acts not distinguishable—lneguality of apportionment damages against two tort feasors, not ground for new trial.
    
    In an action against an elevated railway company to recover for damages to property, the question was asked, “ what in your opinion would have been the fair rental value of this property immediately after the construction and operation of this road there ?” An objection was made to it on the ground that it called for the effect of the operation of the road. Held, that the objection was not valid, evidence being given before the close of the case which justified the submission to the jury of the question whether or not the operation of the road involved a use of the street other than the ordinary one.
    Another question was asked, “ what effect has the road had on the business of the street, if any ?” This was objected to on the ground that the inquiry should be as to the effect on value. Held proper; that whatever affected the business of the street would be likely to affect the rental value of the property situated on the street, and that, as no attempt was made to recover for loss of business, whatever would affect the rental value was admissible, it being subsequently shown what was the rental value so affected.
    Another question was asked, “ was business ever before the construction of the road as bad as it was at the time of the commencement of this action ?” Held proper; it called for a fact which the jury might properly consider.
    When the court is not asked to inform the jury what the legal qualities of an ordinary use of the street are, the parties allow the jury to say whether, as matter of fact, a proved use was an ordinary one or not, and in determining this they can use their personal knowledge.
    The plaintiff proved that after the commencement of the action defendants placed a dripping pan under a certain point of the track. This was objected to as tending to show damages after the action was begun. Held, that dropping and falling of ashes from such a height could not be deemed an ordinary use of a street, and that the jury had a right to find, the pan was put there to prevent the injurious consequences of what had occurred before the commencement of the action.
    The rule as to damages resulting from lawful and unlawful acts, -when a distinct line of demarcation cannot be shown by evidence, is, "where all the testimony of a substantial kind that the nature of the case admits of is before the jury, it should be left to it to judge for itself upon that testimony under proper instructions by the court, the amount of the damages resulting from the unlawful acts.
    
      Decided March 2, 1885.
    A new trial for any inequality in the apportionment of damages between defendant tort feasors, cannot he granted upon a motion made on the minutes.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal by defendants from judgment for plaintiff, entered upon the verdict of a jury
    The action was for damages from the alleged impairment of plaintiff’s easement of- light, air' and access, appurtenant to his land, on Division street, in the city of New York, by the construction and maintenance of an elevated railway, in front of the land and along the street, by the Metropolitan Elevated Railway Company, and by the maintenance of the same, by the Manhattan Elevated Railway Company, that were lessees of the former company. The jury found for plaintiff. Further facts appear in the opinion.
    
      Davies & Rapallo, attorneys, Julien T. Davies and Edward S. Rapallo, of counsel for appellants,
    upon the questions considered by the court, among other things, argued :—I. The court by its charge and rulings applied an erroneous rule of damage, and established an erroneous basis for the estimation of the amount of damages for which defendants were held hable. Against the objection of defendant, the court improperly admitted evidence of damage for which defendants were not hable, and by its charge erroneously permitted its consideration by the jury as a basis for their verdict. Thus, the ruhngs and the charge allowed the jury to consider and find a verdict upon evidence of the whole net damage produced by the railroad, consisting principally of injury to the business interests of the street in which the property is situated. No attempt was made to confine the evidence or the jury to the damage produced by the interference with the easements appurtenant to the land in question, and the direct consequence to the value of the land by such interference ; and no attempt was made to confine the evidence of damage to the property in suit. The plaintiff was allowed to prove the rental value before and after the construction and operation of the road ; and the effect of the road generally upon the rental values. Evidence was allowed as to the disastrous effect of the road upon the business interests of the street; and the injurious effects upon the plaintiff’s own business. The judgment should be reversed upon these exceptions alone (Taylor v. Metropolitan El. R. Co., 50 Super. Ct. 311). Evidence was allowed of dripping from the structure and engines, although no negligence was proved or pleaded. Evidence was allowed as to the effect of the cinders upon the millinery business of plaintiff. The court refused to limit the damages to the interference with the easement, and refused to exclude damage caused by noise, gas, steam or smells. It is the established law of this state that the legislature may authorize the construction of works of a public nature, such as railroads, without requiring compensation to be made to persons who may suffer damages occasioned by the construction or operation of' such works, in case no property of such persons be actually taken or appropriated (Gould v. Hudson River Co., 6 N. Y. 522 ; Radcliff’s Exrs. v. Mayor of B., 4 Ib. 195 ; Taylor v. Metropolitan, &c. Ry. Co., supra; Story v. N. Y. Elevated, 91 N. Y. 122).
    The precise issue for the determination of the jury should have been narrowed down to the question of the value of plaintiff’s property taken and occupied by defendant, together with the damage directly resulting to the plaintiff’s lot, and the compensation which defendant was liable to pay therefor. It has been repeatedly decided that where the city owns the fee of the street the public authorities may use or authorize the use of the same for any street purpose. That the construction of a horse or even a steam railroad is not such a use of a street as will entitle abutting owners to damages or compensation. In this respect there is no difference in principle between the use of a street for a horse or steam railroad (People v. Kerr, 27 N. Y. 188). It is expressly so stated by Earl, J., in dissenting opinion in Story case, and by Freedman in Taylor v. Manhattan Co. Hence we claim that no damage occasioned simply by the running of the trains through the street was recoverable, and that no injury from gas, noise, smells, &c., should have been included. The judge refused so to charge. It has been repeatedly decided that the legislative permission exempts the railroad from all liability to individuals for any public injury (Trager v. Troy U. R. R., 25 N. Y. 526). The plaintiff can recover only the individual injury to property personal to himself, as distinguished from the injury to the whole street, and yet we find that the greater part of plaintiff’s evidence relates to the general injury to the street and to the business of the street, and to the injury to plaintiff’s business. Much of the evidence relates to the injury to plaintiff’s land by the operation of the road and the erection of the structure, including all the effects, direct and indirect, remote and consequential, without any endeavor to prove the extent of the interference with plaintiff’s easements in the street, or the damage resulting from such interference. “It is incumbent on the part of the complainant to allege and prove that the doing of the act prohibited has caused him some special damage, some peculiar injury beyond that which he maybe supposed to have sustained in common with the rest of the Queen’s subjects ” (Chamberlaine v. Chester & B. R. Co., Exch. R. 870). Ho general estimation of the appreciation or depreciation of value in the neighborhood can affect the question of damages to land by the opening of a highway or railroad through it (Troy & Boston R. R. v. Lee, 13 Barb. 169 ; Del. L. & W. R. Co. v. Burson, 61 Penn. St. 369). The immediate, and not the remote cause, is to be considered in determining the point of legal liability for damage (People v. Mayor of Albany, 5 Lans. 524). Thus loss of customers is not a proper element of damage where an action was brought against defendant for placing a pile of lime and sand in front of plaintiff’s store in such manner that the dust blew in and damaged the goods (Squier v. Gould, 14 Wend. 159). No account is to be taken of the general benefit to the land-owner resulting from the building of .the road (Cleveland R. R. v. Bull, 5 Ohio St. 568 ; Little M. R. R. v. Collet, 6 Ib. 182; State v. Miller, 3 Zabr. [N. J.] 383). Conversely, no damages should be allowed the plaintiff for general public injury. In estimating the damage to land from the construction of a railroad, the injury to other-property similarly situated cannot be shown (Selma R. Co. v. Knapp, 42 Ala. 480). In awarding compensation for land taken for railroad purposes, there must be a limit marked which will exclude remote and indefinite damages. The damages must be direct, and not such as are common to the community (Bangor R. R. v. McComb, 60 Me. 290). In an action for obstructing a highway, the plaintiff could not recover at common law, his damage not being peculiar to himself, but common to all (Rickett v. Metropolitan R. R., 161 L. R. 2 H. of L. App. Cas.). Even if the charge to the jury be considered as a direction to disregard any evidence of damage for which defendants were not liable, such direction would not cure the error of having admitted improper evidence. In Erben v. Lorillard (19 N. Y. 299), the plaintiff aided the defendant hr negotiating the purchase of land under a parol agreement that he should be compensated for his services by a permanent lease of the land at an annual rental of eight per cent, upon purchase price. Held, that' this agreement being void, the value of the lease could not be shown for the purpose of proving the value of plaintiff’s services. Such evidence having been received under exception, if it may have affected the verdict, the error is not cured by the judge directing the jury to disregard it, and the defendant is entitled to a new trial.
    II. The court erroneously denied defendants’ motions to non-suit, made upon the ground that there was no evidence of damage for which defendants were liable, except such as indistinguishably included damage for which defendants were not hable. The court erroneously refused to charge that the damage caused by interference with the easements alone being subject of recovery, the jury must find for defendant, unless they believed that the whole damage proved was caused by the acts of defendant, and not the result of other causes for which defendant was not liable, as the evidence did not distinguish between these two elements. No damage can be recovered for loss of air, light or access where substantial injury is not proved to have been sustained So held in actions for damages to ancient fights, &c., in England (Goddard’s Law Easements, Burnett’s Ed. 397, and cases ; Dent v. Anden M. Co., L. R. 2 Eq. 244). Injuries of indefinite amount not capable of estimate do not fall within the constitutional provision against taking property without compensation (Radcliff’s Exrs. v. Mayor, 4 N. Y. 196 ; Pottstown Gas Co. v. Murphy, 39 Penn. 251). To such an extent was the introduction of improper evidence permitted, evidence of damage by gas, steam, smells, noise, loss of business, ■depreciation of rents and values in the neighborhood, driving of busines from the street, total depreciation of plaintiff’s property and rentals, that no evidence whatever can be found in the case of any damage for which defendants were responsible. But even if it be considered that such evidence was given, no attempt whatever was made to distinguish between the total damage and the damage caused by interference with the three easements, for which alone defendant was responsible, nor would the most careful scrutiny have enabled the jury to make distinction. The damage to the principal easement, that of light, is nowhere proved, and no evidence of the extent of interference therewith is offered. Under such proof the plaintiff could recover no more than nominal damages. No data whatever are furnished by which any larger verdict could be sustained.
    
      
      Roger Foster, attorney, and of counsel for respondent,
    oil the questions considered by the court, among other things, argued:—I. The measure of the damages was properly defined by the trial judge (Matter of Utica C. & S. V. R. R. Co., 56 Barb. 456 ; Troy & Boston R. R. Co. v. Lee, 13 Ib. 169 ; Matter of Furman St., 17 Wend. 670 ; Matter N. Y. C. & H. R. R. R. Co., 15 Hun, 63 ; Matter N. Y. L. & W. Ry. Co., 29 Ib. 1 ; Williams v. N. Y. C. & H. R. R. R. Co., 16 N. Y. 103 ; finally reported as Henderson v. N. Y. C. R. R. Co., 78 Ib. 423 ; Walker v. Old Colony, &c. Ry. Co., 103 Mass. 10 ; S. & E. R. R. Co. v. Doughty, 2 Zab. [N. J.] 495 ; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. C. 418 ; Yeaton’s Appeal, Sup. Ct. Penn., 30 Alb. L. J. 116). There is nothing in the case of Greene v. N. Y. C. & H. R. R. R. Co. (12 Abb. N. C. 124) that conflicts with these views.
    II. The objection as to inequality in the apportionment of damages, cannot be raised by the Metropolitan Company in its appeal from the order denying its motion for a new trial. It was not specified in the grounds of that motion, nor is it in the section of the Code upon which that motion is based.
    III. The defendants’ contention, that the damage caused by their acts is not proven with sufficient mathematical precision, is untenable. The rule is well laid down by Chief Justice Sedgwick, in his charge to the jury, in Schile v. Brockhahne, which was sustained by the court of appeals in 80 N. Y. 614, and in the Taylor Case (50 Super. Ct. 311). See also Matter of Utica, &c. R. R. Co. 56 Barb. 456 ; Sutherland Dam. 121.
    IV. There was no error in the various rulings of the trial judge, upon the admission and exclusion of evidence. 1. The testimony in regard to the pan was properly admitted as showing that the defendants by their dripping of water interfered with the uses of the street more than they might have done, and thus made an unreasonable use of the same. That a change of conduct is evidence of previous negligence, is held in Manderschid v. Dubuque, 29 Iowa, 73 ; Folsom v. Underhill, 36 Vt. 680). The claim that plaintiff’s omission to plead negligence in so many words, debars him from recovery for negligent acts, is untenable (Leawse v. Bray, 3 East, 593 ; Blin v. Campbell, 14 Johns. 432 Percival v. Hickey, 18 Ib. 257; see also Bostwick v. B. & O. R. R. Co., 45 N. Y. 712 ; School District Medfield v. B., H. & E. R. R. Co., 102 Mass. 552 ; S. C., 3 Am. R. 502). 2. The evidence of the nature and the amount of the business carried on in Division street before and after the construction of the elevated road was clearly relevant to show the depreciation in the rental value of plaintiff’s property.
    The questions put the experts were clearly proper (Folkes v. Chadd, 3 Douglas, 157 ; Salvin v. North Bracepeth Coal Co., L. R. 9 Ch. App. 708 ; Goldsmid v. Commissioners, L. R. 1 Ch. App. 350 ; Glason v. City of Milwaukee, 30 Wis. 316 ; Grigeby v. Clear Water Co., 40 Cal. 396).
   Per Curiam.

The action was for damages against two defendants, one being the constructor of an elevated railway, and the other the lessee of that railway, which ran through Division street, in front of houses, some owned and some leased by the plaintiff. The complaint alleged that the defendants had, without compensation to the plaintiff, appropriated the easement of air, light and access, belonging to the plaintiff’s land, through means of the railway structure itself, and also of the running of the locomotives and trains upon it. The judge charged the jury that the plaintiff could only recover the diminution of the rental value of his lands, caused by the wrongful acts of the defendants, as shown by the testimony. He charged that they should find to what extent, if any, the structure itself had caused a diminution, and further, “that if you find the use of the railway and its emission of smoke, gas and the flickering caused by passing trains, also are a use inconsistent with the legitimate use of the public street, and that, by reason of that use, the rental value of plaintiff’s property has been seriously damaged, and that that use and that erection were the only cause of that damage, you will then find for the plaintiff, for the amount that you think that damage was.” He in effect charged the jury also, that the plaintiff’s recovery must be confined to the effects of such impairment of the easement of air, light and access, as the testimony proved. These charges follow the law announced in Taylor v. Metropolitan Elevated Railway Co. (50 Super. Ct. 311).

The plaintiff was allowed, under exception, to ask, what in your opinion would have been the fair rental value of this property immediately after the construction and operation of this road there ?” The defendant objected to the question, so far as it called for the effect of the operation of the road, on the ground that the plaintiff was entitled to recover only for the injury caused by the interference to fight, access and air, but nothing for the noise, smoke, smell or any of the inconveniences from the running of the road. The Taylor case decided in effect, as the judge charged, that there could be a recovery for the consequences of the running of locomotives and trains, provided it appeared that the manner of the running, and its physical effect, constituted a use of the street in fact other than, or beyond an ordinary and legitimate use of the street. The objection was not valid, as it assumed the contrary of this. There was before the case closed testimony given, which justified the submission to the jury of whether the running of the locomotives involved a use of the street other than the ordinary use. The ruling was consonant with the charge that a recovery could be only for an impairment of the easement of fight, air and access. The smoke, the gas, the cinders, the dropping, affected the easement, and may have impaired-it. Each one may have had an effect that lasted but a few minutes, but a repetition of them a jury had a right to find was a serious impairment of the easement.

The same considerations are to be applied to an objection made to another question of the same kind, that it should be confined to the effect of the structure itself upon rental value.

A witness had said, that rents began to fall off in the neighborhood of the place in question, about a certain time. Another question was then asked, “When did the diminution in the volume of business there commence ?” This was objected to, on the ground that the falling off of the volume of business is not an element of damage. The objection was overruled. The answer, however, was not injurious to the defendants.

The next question was, “Is there as much traffic now ‘as there was before the construction of the road? Are there as many people walking through the street ?” The witness said that he could not answer that. To a question to another witness, “What effect, if any, has it had upon the business of that street ? What effect has the road had on the business of the street, if any ?” the objection was taken to his stating the effect on the business, on the ground that the inquiry should be as to the effect on values. The question was allowed, and the witness answered that customers did not come there any more as they had, on account of the smoke, dirt, cinders and noise, etc. There was no attempt, in any part of the trial, by the plaintiff to recover for a loss of business. The rental value of the business would be likely to be affected by any cause that would for a continuous time keep customers from the shop. And the plaintiff was entitled to show what was the effect of the defendants’ acts upon anything likely to affect rental value, afterwards proving what was the rental value as so affected.

The question, “Was business ever before the construction of the road as bad as it was at the time of the commencement of this action ?” was calculated to call for a fact that the jury might properly consider in determining whether rental value had been lessened by defendants’ acts, It, with the last question considered,. would have been pertinent in rebuttal to meet a defense, alluded to in the judge’s charge, that if the diminution in rental value was caused not by the railway, but by the general flow of business higher up in ¡New York, the plaintiff was not entitled to recover. There were other exceptions of a like kind, that should not be held to be valid, but it is unnecessary to particularize them.

There were witnesses who testified to the rental value of the premises before and after construction and operation of the railroad. The judge was explicit in his charge that a recovery could be had only for a diminution of rental value, and that they must not give a verdict to plaintiff for any part of a diminution that resulted from the effect of the running of the road, excepting so far as that running was not an ordinary use of the street.

It is claimed that there was no evidence that the use of the street by the trains in running was not an ordinary and legitimate use. The court was not asked to inform the jury what were the legal qualities of an ordinary use of the street. The defendants allowed the jury to say whether, as matter of fact, the defendants’ use in the running of the trains was an ordinary one. For this purpose they could use their personal knowledge, which was common to all of them, of the manner in which streets are used, .in fact, ordinarily.

The plaintiff was allowed to prove that after the commencement of the action, the defendants placed under a point on the railway where the locomotives were in the habit of stopping, a dripping pan, to catch the drippings from the engine. This was objected to as tending to show damage after the action was begun, when the plaintiff had confined his demand to the beginning of the action. Probably the testimony did not affect the decision of the case one way or the other. Dripping and falling of ashes, from such a height as the defendants’ railway, cannot be deemed to be a part of the ordinary use of a street. Under the circumstances of this case, the jury would have had a right to find that the pan had been put up to remedy or prevent the injurious consequences of what had occurred before the action was begun.

There was on the trial an objection to a recovery of' more than nominal damages. The ground expressed for this was that no testimony in this case permitted the jury to find what, if any, diminution of rental value had been caused by the permanent structure of the defendants as distinguished from that caused by the operation of the railroad, if the jury fomid it to be only an ordinary use of the street. The jury had before them all the testimony of a substantial kind that the nature of the case admitted. It would apparently have been impossible to get an estimation of what would have been the rental value, if there had been the structure only, and what it would have been if in addition there had been smoke or cinders, but no gas, or there had been some other combination of circumstances, and which would have to be described to the expert, as one that was an extraordinary use of the street. The plaintiff would have to go without redress for his wrong, if it existed, if such testimony was necessary. Under such circumstances, of necessity, the jury must be left to judge for itself, on the testimony given, under proper instructions by the court.

The inequality of the damages assessed against the defendants respectively, is not ground for granting a new trial when the motion for it is made upon the judge’s minutes.

Judgment affirmed, with costs.  