
    John S. Ferdon, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
    Third Department,
    March 10, 1909.
    Railroad — construction of new tracks—widening of embankment— reasonable use — evidence—expert witnesses— opinion.
    Where a railroad in widening, its embankment for the purpose of constructing a double track is acting within legislative authority and has acquired the necessary rights from private owners, it is only liable for negligence in the construction, or for want of due skill and care in. so arranging or accomplishing the necessary work as to avoid injury reasonably to be anticipated.
    
      Although the right to do such work is unquestionable, it must be exercised in strict conformity with the rights of private owners and subject to the same responsibilities as though the right were exercised by an individual.
    In a suit against a railroad company for an injunction and to recover for injuries caused by the overflow of a river, due to debris cast into the channel by defendant when widening its embankment, the question of the reasonableness or unreasonableness of defendant’s acts in the use of its lands, having reference to the proper maintenance and protection of its property for the convenience and safety of the traveling public, is to be determined, and the failure of the trial court to apply such criterion calls for a reversal.
    Conclusions of expert witnesses may be given in evidence only when the conclusions, as well as knowledge of the facts, from which they are drawn, depend upon professional or scientific information or skill not within the range of ordinary training or intelligence, and the knowledge which the witness possesses exists in reasons or argument rather than in descriptive facts, and cannot, therefore, be intelligently communicated to others so as to acquaint them with a full understanding of the subject.
    Where the evidence is evenly balanced the admission of the testimony of witnesses who possess no scientific knowledge, that the filling in by the railroad on its side of the channel caused the washing out of the bed of the river along plaintiff’s land, which was one of the issues involved and submitted to the jury, calls for a reversal.
    Chester, J., dissented.
    Appeal by 'the defendant, The New York, Ontario and Western Bail way Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 22d day of April, 1907, upon the decision of the court rendered .after a trial at the Sullivan Trial Term, certain questions of fact having been submitted to the jury.
    The complaint alleges that the defendant is a railroad corporation duly organized and incorporated under the laws of the State of New York and operating a railroad through the town of Bockland, Sullivan county, N. Y.; that the plaintiff is the owner of a farm on. the easterly side of the Beaverkill river; that defendant is, and for more than twenty years has been, the owner and in possession for the purposes of its railroad of a strip of land adjacent to said Beaverkill on the westerly side thereof and opposite plaintiff’s- farm ; .that said railroad was constructed about the year 1872, and has since been operated by the defendant along and upon its premises aforesaid; that since the construction of said railroad the defendant has at divers times, and particularly in the years 1901, 1902 and 1903, thrown into said stream large quantities of dirt, rock and debris, and has thereby wrongfully diverted the stream from its. natural course and channel, partially tilling the sanie and causing the waters to flow over and upon plaintiff’s premises. Judgment is demanded that an injunction be granted restraining the defendant from further interference with the stream and for'the damages which the plaintiff lias sustained.- •
    Plaintiff was formerly the owner of land on both sides of the river, and in 1871 conveyed in fee to the predecessor of the defendant a portion thereof, “ of the width of one hundred feet,: being fifty feet on each and- either side of the center line- of the railroad of said company as.the same is staked' and located and indicated upon a map of such location on file in the office of the cleric of the county of Sullivan,” being the land on which defendant’s railroad is built on the westerly side of the river and opposite the portion of plaintiff’s land still owned by him, and which in this action he claims . to have been damaged by the- acts of the defendant. The land thus conveyed skirted the river, and at some points included the waters adjacent to the shore thereof, ft consisted for several hundi-ed’feet of a mountainous and rocky slope extending to the water’s edge, ■through which the railroad was cut. The river at the point in question is about 140 feet wide, and as.it- flows down, stream increases quite rapidly in width. ■ .
    ; In the year 1904, defendant double-tracked its said' railroad. ,, In .the years 1901,1902 andT'1903, for the purpose of widening its roadbed for such additional track, it conducted blasting operations in the rock cut above mentioned, and threw, the accumulated rock, and debris over the easterly edge of its railroad "and into' the river, thereby extending into the river the embankment of its roadbed. Ho effort was .made at the trial to fix definitely the extent of such encroachment, .but plaintiff’s surveyor estimated that the embank- . ment extended fifteen,or twenty feet into the river. In each of those years freshets "occurred and the water overflowed and damaged ; plaintiff’s farm., It -is the contention of plaintiff that the filling in. of the river .by. defendant on the westerly side thereof turned the current, and channel of the Stream and caused the water to flow upon : his premises. - Hence his alleged grievance.
    .' -At'the close of the testimony the court, submitted to the jury the ■ following, questions: •■ ..
    
      “ I-. Did tlie defendant during the spring and summer of 1901, 1902 and 1903, by the enlargement or repair of its roadbed, or in any other way, dump rock, dirt and other materials into the channel or bed of the Beaverkill Diver,'at or adjacent to Carpenter’s eddy, so as to materially-fill up and narrow the.channel'or bed of the river at that point?
    “ 2. If the answer to the first question be ‘ yes,’ did such filling or narrowing of the channel cause the waters to change its natural and ordinary course during times of high water in 1901,1902 and 1903, or in either of.said years?
    
      “ 3. Was the plaintiff’s premises damaged by the floods of December, 1901, - September, 1902, and , October, 1903, or by-either of them ? If so, to what amount in dollars, and cents ?„
    “ What was the- damage, if any, to the plaintiff’s crops by the flood of 1902 ?
    “4. -Was such damage caused solely by the changing of the course of the river by the act of the defendant?
    “ 5. Or was -such -damage caused by the high water, irrespective of the act of the defendant?” .
    All those questions were answered by the jury favorably to the plaintiff, and they fixed the damages to his premises for the three years,at $500 arid to his crops-at $150,
    .. The court in its- decision adopted these findings, and made' additional. findings and-directed judgment in favor of plaintiff for- the sum of $650. .From this judgment defendant.appeals. .
    .George H. Carpenter, for the appellant. . ..
    
      Frank S. Anderson, for the respondent.
   Cochrane, J.:

■ Plaintiff conyeyed to the defendant,.for the purpose of a railroad, the property where the alleged wrongful acts were committed. It is apparent from, the language of the grant that plaintiff understood and intended that .it should be so. used. .The defendant,.in. constructing an additional track and -in widening, for, that .purpose its roadbed, was acting in pursuance .of legislative authority ■ and. for the accomplishment of a work of ■ public utility. In such a case, where it is acting within legislative authority and has acquired the necessary private rights of owners, it is well settled that it is only liable for negligence in the construction or for want of due skill and care in so arranging or accomplishing its necessary work as to avoid injury reasonably to be anticipated. (Uline v. New York Central & H. R. R. R. Co., 101 N. Y. 98; Bennett v. Long Island R. R. Co., 181 id. 431; Conklin v. New York, Ontario & Western R. Co., 102 id. 107,112; Bellinger v. New York Central Railroad, 23 id. 42; Conabeer v. New York Central & H. R. R. R. Co., 156 id. 474.)

Under the foregoing authorities the defendant was justified in the construction of an additional track for its railroad and if it properly .and reasonably exercised such right of construction any damages to plaintiff necessarily arising therefrom would be merely incidental or consequential and not of such a character as to render the defendant liable therefor.

But the defendant could not arbitrarily or capriciously exercise such right of construction in a manner unnecessarily injurious to plaintiff. The authorities cited do not go to that extent. Whether defendant should have widened its roadbed on the side more remote from the river, or whether it extended its embankment in the river to an unnecessary extent, or whether some other method of construction should have been adopted were questions for the consideration of the trial court in determining whether defendant had in a reasonable manner and with due regard for plaintiff’s rights constructed its additional track. Although the right of defendant to build such track and to do all things necessary for the maintenance and preservation of its property cannot be questioned, nevertheless such right was subject to the exercise thereof in strict conformity to the riglits of private owners and subject to the same responsibilities as though such right of the defendant were being exercised by an individual. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267.)

In the case last cited it was stated tersely and comprehensively: “ The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of liis ownership over his property, having regard to all interests affected, his own, and those of his neighbors, and having in view also public policy.”

The question of the reasonableness or unreasonableness of the defendant’s acts in casting its debris into the river having reference to the necessity of widening the roadbed for an additional track or having reference to the proper maintenance and protection of its property for the convenience and safety of the traveling public was not determined and seems not to have been considered at the trial. Plaintiff’s theory of the action was that defendant was liable irrespective of any question of unreasonableness in the use of its property provided only its acts caused the water to flow over plaintiff’s premises. That theory is untenable. The court did not go far enough in its determination to fasten liability on defendant.

There is some evidence that defendant cast its debris beyond the boundary limits of its property but the evidence fails entirely to satisfactorily establish that such quantity was sufficient to accomplish all the mischief of which the plaintiff complains.

It may be that defendant in the lawful exercise of its right to build an additional track might have accomplished such purpose without inj urious consequences to plaintiff by some other method or plan of construction and that having due regard for the rights of others defendant should in reason and fairness have adopted such method or plan,. That criterion should have been applied to the case at the trial and. because of the failure to do so it would seem that a reversal must follow.

There is another difficulty underlying this judgment. It is a very serious question whether the flooding of plaintiff’s land was occasioned by tilling in the river on the opposite side, or was due to the natural operation of the freshets. This point was strenuously combated by defendant. It appears both from the complaint and the evidence that the river is subject to great fluctuations in the quantity of water flowing therein and ■ to freshets and to suddenly increased volumes of water. The freshet of 1901 was admitted by all the witnesses to have been the severest in many years. Two villages in the vicinity were flooded. Portions of land, in one instance several acres, were swept away. The railroad track was submerged and a portion of the new embankment recently constructed was destroyed. The contour of the stream seems to have been changed at various points. Naturally and as appears by the evidence a freshet of that kind would leave a condition which would be aggravated by subsequent occasions of high water. When that freshet occurred the work of filling in was far from completion, which fact adds to the possibility that plaintiffs damages wére due to the natural operation of the freshet. There is evidence that prior to that freshet the channel was deep on the westerly side of the river whereas on the easterly side plaintiffs premises sloped gradually into the river, the shallow water gradually increasing in depth. At the time of the trial the conditions were largely reversed and adjoining plaintiff’s premises was a deep channel. Witnesses were permitted to testify that the filling in on the railroad side of .the river caused the washing out of the bed of the river along plaintiff’s land. This testimony was received against the objection of defendant and exceptions were taken. This was one of the very points in. controversy and one of the questions submitted to the jury and answered by them. As stated by the learned trial justice to the jury it was one of the crucial questions, in the case, and in giving such testimony the witnesses were deciding this branch of the case and transcending their proper functions. They possessed no scientific knowledge on the subject and their answers were merely the expressions of opinions and deductions from facts which could only properly be deduced by the court or jury. Their testimony imparted no information which could not be given by a statement or narrative of facts.

The admissibility of opinions by expert witnesses has been several times, recently before the court of last resort. (Dougherty v. Milliken, 163 N. Y. 527; Schutz v. Union R. Co., 181 id. 33; Welle v. Celluloid Co., 186 id. 319.) From those cases it appears that conclusions of expert witnesses may only be given in evidence when such conclusions as well as knowledge of the facts from which such conclusions are drawn depend upon professional or scientific information or skill not within the range of ordinary training or intelligence and that the knowledge which the witness possesses exists in reasons or argument rather than in descriptive facts and cannot, therefore, be intelligently communicated to others so as to acquaint them with a full understanding of the subject. If the subject is one concerning which scientific knowledge can only be imparted in the form of reasons or opinions to those not informed as to the particular science, then such evidence may be given. It is apparent in the present case that the opinions of these witnesses were based on nothing but facts easily susceptible of description, and in going beyond such facts the witnesses were clearly invading the province of the court. The question for determination was whether the change in the river was due to filling in the westerly edge thereof. The jury as well as the witnesses could answer that question after hearing all the facts bearing thereon. The witnesses did not state merely that filling in the river caused a displacement of the water but in effect that it caused the deep channel of the river to be changed from the extreme westerly side adjacent the railroad to the extreme easterly side adjacent the farm of plaintiff, a distance of about 140 feet. As this evidence was directed to a question concerning which the evidence was quite evenly balanced it cannot be overlooked. As was said in Welle v. Celluloid Co. (supra): “In a close case an erroneous admission of such opinion evidence may very seriously prejudice a defendant.”

The judgment must be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.

All concurred, Smith, P. J., in result, except Chester, J., dissenting.

Judgment reversed on law and facts, and new trial granted, with costs to appellant to abide event.  