
    Peter Miller and Barbara Miller, Resp’ts, v. The New York, Lackawanna and Western Railway Company, App’lts.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 31, 1888.)
    
    1. Bailboads—Lease—Lessobs add "lessees—Liability fob damages— Who liable fob hegligbht cobstbuction of embaskmbkt.
    Where a railroad company had leased its railway to another railroad company by an indenture which, inter alla, authorized the lessee to make extensions and repairs to the road, to be paid for by the lessor, and the lessees, by way of repair, filled in a trestle on a part of the road, thereby m¡udng an embankment twenty feet high along the whole breadth of the phii-niit's’ premises which were adjacent to the road, from which embankment the silt and earth in rainy seasons ran down to and upon the plaintiffs’ premises, rendering them unfit for his use, Held, that the defendant, the lessor, had a right to contract for the construction of the embankment without being liable for damages incurred as the result of the negligence of the contractor in the manner of the performance of the work; and that the lessee, having performed the work by its officers, occupied the relation of an independent contractor, for whose negligence the lessor is not liable. The lessee only would be liable in case the embankment was negligently constructed.
    3. Same—When lessor liable.
    
      Held, that as the damage complained of, however, was not the result of negligence in the manner of the performance of the work, but arose from the nature of the structure itself, without reference to skill or care in the construction, and as the embankment, when completed, became a permanent part of defendant’s road in like manner as any other portion, for all damages resulting thereupon the defendant is liable.
    3. Same—Evidence—Negligence—Must be proved.
    
      Held, that there was no evidence to show that the plan of construction of the embankment required a retaining wall or ditch, or that the lessee did other, or different, than to construct the work in the way contemplated by the parties; to say otherwise would be to presume the lessees guilty of negligence. Presumptions of negligence rise only on proof..
    Appeal from a judgment entered upon an order denying defendant’s motion for a new trial, and from the order denying a new trial.
    The plaintiffs bring this action to recover damages to real property. Upon the trial, it appeared that the defendant was a corporation duly created under and by virtue of the Laws of the state of New York, for the purpose of constructing and operating a railway from the city of Binghamton, N. Y., to the International Bridge in the county of Erie, N. Y. The defendant’s premises adjoin those of plaintiffs on the easterly and northerly sides thereof. Previous to October, 1882, defendant had constructed its road, and laid its tracks upon trestles, about twenty feet above grade on its land adjoining plaintiffs’ premises. In October, 1882, defendant executed and delivered to the Delaware, Lackawanna and Western Railroad Company, a corporation existing under and created by the Laws -of the state of Pennsylvania, an indenture of lease of its said railway, for and during the full term of its corporate existence, and thereupon the said last-named corporation entered upon and took possession of the said railway, its appurtenances and appliances and has since continued'to operate the same. In 1883, 1884 and 1885, the lessee caused the said trestle to be filled with clay and earth making an embankment twenty feet high upon its land, adjacent to and along the whole width of the plaintiffs’ premises. In seasons of rainy weather since said filling, clay and earth has washed down from said embankment to and upon plaintiffs’ premises rendering them unfit for the purposes used, and occasioning the damage here complained of. In the construction of the embankment it was practicable to have prevented this washing, by the construction of a ditch or retaining wall upon the defendant’s premises. The •defendant in payment of the cost of constructing such embankment issued and delivered to its lessee its bonds for the amount thereof, the said filling being done by and under direction of the officers of the lessee.
    
      Seward A. Simons, for resp’ts; John O. Milburn, for app’lts.
   Hatch, J.

By the terms and conditions of the lease, executed by these corporations, it was, among other things, provided that the defendant should maintain its corporate existence and perform all acts and things thereunto necessary, and that it would from time to time, upon request of the lessee, make, execute, issue and deliver its bonds and stock for the construction of locomotives, machinery and equipments for said railroad, and for the construction of any extensions, or branches, or any other railroads which the lessor in the exercise of its rights possessed the power of doing, and for all other things, work or works, which the lessee may desire to have done in the exercise of said rights, the cost of which is properly chargeable to construction account.

It is under this article of the lease that the lessee exacted, and the lessor executed and delivered its bonds in payment, for the cost of constructing the embankment. It is, however, claimed by defendant that such embankment was no part of the original structure of defendant’s road, that it fully completed its chartered duty to construct when its road was in operation upon the trestle, from which no damage was sustained by plaintiffs, and that the filling of the .trestle was the act of the lessee in the nature of a repair over which defendant exercised no control. It may be-conceded that when the lease was executed, the road was. in operation, and the public duties of defendant discharged, sufficiently to support the lease executed by it. It was of course possible to continue the operation of the road upon the trestle, but it is common knowledge that such structures are usually temporary where the nature of the ground renders an embankment practicable. We think that a fair construction of the lease, and the act of the parties show that the trestle was regarded as a temporary structure only, to be thereafter filled, making a permanent road-bed of earth.

The lease in terms provides, in the clause relating to the construction of other roads or branches, that the lessor when called upon will issue its bonds or stock for the payment of all work or works which the lessee may desire to have done, the cost of which is chargeable to construction account. Under that article, the work in question was performed, and the lessor in recognition thereof paid the cost therefor in the manner provided. When constructed it became a permanent part of defendant’s road in like manner as any other portion. Such construction was not in the nature of a repair, as it supplanted the trestle, mating the permanent and final support for the ties and rails. Such being the character of the structure provided for by defendant, it became and is its property and improvement, and for all damages resulting therefrom, it is liable. Mairs v. Manhattan R. E. Asso., 89 N. Y., 498, 505.

It is insisted by defendant that the damage claimed did not arise from the embankment as a structure, but from the manner in which the work was performed for which the lessee alone is liable. It is undoubtely true that the defendant had authority, finder its charter, to contract for the construction of any or all portions of its road, and not be liable .for damages incurred as the result of negligence on the part of the contractor m the manner of the performance of the work. Hexamer v. Webb, 101 N. Y., 371; 1 N. Y. State Rep., 46; King v. N. Y. C. R. R. Co., 66 N. Y., 181.

In the present case the lessee performed the work under the direction of its own officers, the lessor being interested therein only as to the result of the work and not in the manner of its execution, or the means' by which it was accomplished. The lessee therefore occupied the relation of an independent contractor, for whose negligence the lessor is not liable.

The question therefore presents itself, is the damage here complained of the result of negligence in the manner of the performance of the work, or does it arise from the structure itself, without reference to skill and care in its construction? If the former, the lessee is alone liable, if the latter the lessor. Storrs v. The City of Utica, 17 N. Y., 104; Harrison v. Collins, 86 Penn.. St., 153; Lockwood v. Mayor of New York, 2 Hilt., 66.

So far as the case discloses, the embankment was constructed in the ordinary manner, and by the ordinary means usually employed. The damage arose by the washing down of earth upon plaintiff’s premises in rainy seasons. It is evident that an embankment of this character will have sloping sides, being wide at the base and narrow at the top, and the result of such construction is, that water will shed from it, and carry silt and earth in greater or less quantities, depending upon the volume of water and the character of the soil; such result does not follow from lack of care in the manner of construction, but from the nature of the structure. It is suggested that this might have been avoided by building a retaining wall, or digging a ditch, but there is nothing in the case to show that such was the plan of construction. It is quite apparent that embankments may "be built in various ways, by retaining all the earth between walls, or by a ditch to carry off all the water shed, or by filling in the earth to the required height without either. Such suggestions, therefore, relate rather to the plan of construction than to the manner of performing the work. Here we find an embankment constructed, by which from its inherent character damage results. There is no evidence to show that the lessee did other or different than to construct an embankment of the character contemplated by the parties. To say otherwise would be to presume the lessee guilty of negligence; but presumptions of negligence only arise upon proof. Curtis v. Rochester, & S. R. Co., 18 N. Y., 543; Cordell v. N. Y. C. R. Co., 75 N. Y., 330.

And here there is none. On the other hand, the defendant has acquiesced in the manner of construction, accepted, paid for it, and is now receiving the benefits under it. We think that these facts warrant the presumption that the embankment constructed was such as the defendant contracted for, and damage from it having resulted the defendant is liable The judgment and order appealed from is therefore affirmed with costs.

Titus, J., concurs; Beckwith, Ch. J., did not sit.  