
    Peck v. Fonda, J. & G. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Appeal—Review.
    On appeal from an order setting aside a verdict for plaintiff as against the weight of evidence, in an action for injuries resulting from an overflow of a creek, the fact that the jury were, by consent, allowed to see the place where the injury occurred, and that such evidence is not in the record, is no ground for refusing to consider the case, where the inspection was made long after the time of the alleged overflow, and simply to enable them to understand the situation.
    3. New Trial—Setting Aside Verdict.
    An order setting aside a verdict and granting a new trial should be on payment of costs.
    Appeal from circuit court, Montgomery county.
    Action by Charlotte Peck against the Fonda, Johnstown & Gloversville Railroad Company for damages occasioned to plaintiff’s land by the overflowing of Gayadutta creek. The plaintiff claims that this overflowing was occasioned by the obstruction caused by a bridge with its piers and abutments constructed by the defendant. There are two causes of action set forth in the complaint of the same general character,—one happening in February, 1886; the other in April, 1887. The case was tried at the circuit, and a verdict rendered for plaintiff for $350. A motion by defendant to set aside the verdict as against the weight of evidence was granted, and plaintiff appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Z. 8. Westbrook, for appellant. A. D. L. Baker, for respondent.
   Learned, P. J.

The learned justice in his opinion states that the plaintiff claims three items of damages, one happening in February, 1886, and the two others in April, 1887,—one of the latter being injury to plaintiff’s barn; the other, injury to her dwelling. Ho exceptions were taken at the trial, and the only matter before us is the appeal from the order. We are of the opinion that the justice before whom a cause is tried is generally better capable of judging in regard to the weight of evidence than an appellate court can be. Quite frequently, when motions of this kind are made before the trial justice, he disposes of it summarily, in order that a speedy review may be had in an appellate court; but, with the better advantage which the trial justice has of understanding the evidence, it would be well if, as in this case, •the justice who tried the case would carefully consider the evidence, and deliberately dispose of the motion. When that has been done, a very strong case should be made before the appellate court should disturb the decision; for the issue still remains to be tried, and the plaintiff has his right to bring •the cause before another jury.

The first point made by the plaintiff is that the jury, by consent, were allowed to see the places in question. Therefore the plaintiff urges that evi.dence was before them which is not in the printed case, and that their verdict should be final. West v. Kiersted, 15 Wkly. Dig. 549. But in that case the referee saw the actual injury which had been done. In the present case the inspection which the jury made was long after the time of the alleged injury. It was not intended (so far as we can see) to enable them to determine the amount of the injury, but rather that they might understand the situation. Nor was the. verdict set aside on account of excessive damages. It can be seen from the opinion that it was set aside on The facts which occurred at the time of the freshets, and which the jury could not have seen. Therefore this objection made by plaintiff is without force. No question of law was raised. The charge of the learned justice stated the law applicable to ■the case in a manner satisfactory to both parties.

The Cayadutta creek runs in a southerly direction, and empties into the Mohawk; Main street, sometimes called the “Turnpike,” running easterly and westerly, crosses the creek, nearly at right angles, by means of a bridge. The plaintiff’s lot fronts on Main street, and lies below it, on the easterly side of the creek, reaching to defendant’s railway. It is on a lower level than Main street. About 150 feet below Main street is defendant’s bridge, and about 40 feet below that is the bridge of the New York Central & Hudson Biver Railroad Company. Part of plaintiff’s lot is adjacent to the creek. The defendant’s bridge was built some 20 years ago; and the plaintiff’s charge is that between the abutments of the bridge, and about 8 feet therefrom, there were trestles or piers which were an obstruction to the flow of water, and the cause of plaintiff’s damage. The space between the trestles was about 38 feet.

As to the injury of February, 1886, the learned justice says that it was .caused by the giving away of a dam somewhere above on the creek, and that the timbers coming down were thrown against plaintiff’s barn and buildings. This appeal's to us from the testimony to be correct; and, if so, the .damage seems to have been in no way occasioned by defendant. Indeed, the justice had charged, without any exception, in substance, that on the testimony the defendant was not liable for this injury. The injury in 1887 came from a great flood which carried away the Main-Street or Turnpike bridge, and carried the timbers against plaintiff’s barn. At or about the ■same time there was a rising of the waters by which plaintiff’s house was damaged. In regard to the injury to the barn, it seems to us that the views of the learned justice were correct. As to the flooding of plaintiff’s house, there is a question whether this was caused by defendant’s bridge, or by the bridge of the Central Railroad, or by the rise of the water in the Mohawk which dammed back the waters of the creek. We have examined the evidence, and we find no reason for reversing the conclusion of the learned justice on this point. It is unnecessary to go over the evidence in detail.

The learned justice granted the order with costs to abide the event. AVhen .a new trial is granted, and verdict set aside as against the weight of evidence, this should be done on payment of costs. Mahar v. Simmons, 47 Hun, 479. The order, therefore, must be modified, so that the verdict is set aside, and new trial granted upon payment by defendant to plaintiff of the costs and disbursements of the former trial and of the motion, and as thus modified affirmed, without costs of appeal to either party.  