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Fisher v. Rankin, 25 Abb. N. C., 191.

ī that the complaint proceeded and stated : that the said injuries

were caused wholly by the carelessness and negligence of the defendant, in that, among other things, he failed to keep the said sidewalk in a safe and proper condition, but on the contrary permitted it to be and remain in an unsafe and dangerous state and condition, all of which the defendant well knew or ought to have known.

That this plaintiff did not, through any fault or negligence on her part, contribute to the said injuries. There was no statement or averment whatever that the defendant had unlawfully made or authorized the excavation in the sidewalk. But what he was charged with having done were acts and omissions which in judgment of law were careless or negligent, and no facts whatever were stated in the complaint characterizing what had been done as an unlawful interference with the surface or any other part of the sidewalk.

It is plainly evident that the cause of action set forth in the complaint depended wholly upon the charge made against the

defendant that this unsafe condition of the walk had been brought 9 about wholly by his carelessness and negligence. And that

presented a case entirely different from the case which the court in this manner submitted to the jury. A very manifest distinction in the law, as well as the facts, exists between the case stated in the complaint and that upon which the right of the plaintiff was made to depend in this submission of the action.

In Dickinson v. Mayor, etc., 92 N. Y., 584, this distinction was clearly maintained. For it was there said as to that case that “this was not an averment for keeping, maintaining and

suffering a nuisance, but merely for negligence in not removing 10

the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for an injury sustained by reason of defendant's negligence. The authorities establish a distinction between an action for wrong and an action for negligence.” (Id., 588.) And under a complaint alleging one cause of action, the plaintiff is clearly disabled by this principle from recovering for another not mentioned or referred to in any manner in the pleading. If she could recover at all, her right to do so was restricted to the case contained in her complaint.

Lamming v. Galusha, 135 N. Y., 239.

(Stevens v. Mayor, etc., 84 N. Y. 206, 305; Day v. Town of New 11 Lots, 107 Id., 148, 154–5; Neudecker v. Kohlberg, 81 Id., 296, 305.) That she did not do in this case as it was submitted to the jury, and the exception taken by the defendant is well founded.

It has been urged by the plaintiff's counsel that this may be obviated by so amending the complaint as to make it conformable to the theory of the case on which it was submitted to the jury. But an annendment or change of that description cannot be made upon the trial, or after the trial upon the argument of an appeal. For the effect of that would be to change the action 12 from one cause to another and different ground of action. And such a change cannot be, under the authorities, made to support the judgment from which an appeal had been taken. (Davis v. N. Y., Lake Erie, etc., R. R. Co., 110 N. Y., 646.)

In this respect the amendment or change would not be supported by anything which was said in Harris v. Tumbridge, 83 N. Y., 92. For it was there conceded that a new cause of action could not be introduced into the case by an amendment either at the trial or upon an appeal. The only manner in which the

13 error in the submission of the case can be corrected is by a new trial, and for that reason the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

VAN BRUNT, P. J., and BARRETT, J., concurred.

LAMMING v. GALUSHA.

New York Court of Appeals, October, 1892.

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[Reported in 135 N. Y., 239.] 1. In an action for an injunction and damages as relief against the unauthor

ized use of a highway by a railroad company, the plaintiff may unite with this cause of action for a nuisance a demand for damages for a

personal injury to himself by a passing train. 2. Continuous injuries to plaintiff's real property by the maintenance of a

nuisance, and injuries to his person on a single particular occasion caused by the same nuisance, may be joined in one action, for they are transactions connected with the same subject of action. The elements of the complaint were as follows:

Lamming v. Galusha, 135 N. Y., 239.

1

Plaintiff was owner of premises on the Ridge Road and of half of the bed of the road :

The road, a highway on which he had an easement of free passage:

For several years defendants had unlawfully maintained a steam railroad along said road, and upon plaintiff's said premises :

The track was so laid as to hinder vehicles, and upon an embankment unlawfully made for the purpose:

Resulting obstruction of the highway by mud, water and

snow:

2

3

Plaintiff frequently thereby compelled, in coming and going, to turn into the fields, and to perform labor and incur expense in getting to and fro:

His access to his premises from the highway rendered difficult and dangerous :

Defendants customarily ran trains at a high, dangerous, and unnecessary rate of speed; engines customarily emitting large clouds of smoke, burning cinders and steam, and making frightful noises :

And defendants frequently stopped unusually long trains, extending in front of plaintiff's premises, cutting off his access.

The part of the complaint on which the decision turned was as follows:

“That on or about the 4th day of August, 1888, plaintiff, in the ordinary prosecution of his said business, was riding along said North avenue in his own market or produce wagon, and driving his own horse attached thereto, and going toward the north ; that said horse was a quiet and well trained animal, accustomed to steam railroads and cars, and that plaintiff was driving with due care ; that plaintiff had reached a point about midway between Norton street and the Ridge road; that thereupon one of said locomotive engines and trains, operated by defendants, approached from the south, running at a high rate of speed and making alarming noises with the escape of steam and otherwise, and without abatement of said speed or noises, ran past plaintiff; that the approach of said train greatly frightened said horse, and, as said train passed, said horse got beyon plaintiff's control, and turned quickly, overturned said wagon

4

Lamming v. Galusha, 135 N. Y., 239.

and threw plaintiff violently out of said wagon and to the 5 ground; that said horse, in his fright and struggle to escape, stepped upon plaintiff's head, shoulder and the lower part of his body, wounding and bruising plaintiff.” [Here followed details of his physical injuries.]

The complaint then went on to show: That defendants intend to continue such wrongful maintenance of the road and operation of trains:

Plaintiff thereby in addition to the bodily injuries described has been totally excluded (with excepted periods) from more

6 than one-third of his easement, and the residue has been greatly impaired; he has been hindered in getting to market; sale of sand, etc., been lessened, house endangered, value of premises diminished, and family put in fear, to his damage already suffered $10,000 :

That the aforesaid acts constitute a nuisance of special injury to plaintiff, that there is no adequate remedy at law, and that without injunction he could only be relieved by a multiplicity of actions, the special injury is irreparable, will increase, and damages cannot be adequate.

7 WHEREFORE, an injunction and $10,000, or such other sum as it may appear he is entitled to down to the time of trial, is demanded.

a

Defendants demurred, assigning misjoinder of action for damages by wrongful entry, with action for injury to personal property, and action for injury to person, and an action to abate a nuisance.

At Special Term, Adams, J., overruled the demurrer on substantially the same grounds as explained in the opinion of the Court of Appeals hereinafter given.

The Court at General Term reversed the judgment on the ground that the complaint appeared to present a cause of action for negligence causing injury to the person, with a cause of action for relief from a continuing nuisance.

Plaintiff appealed.

Lamming v. Galusha, 135 N. Y., 239.

9 The Court of Appeals reversed the decision of the General Term.

ANDREWS, J. The question presented by the demurrer is whether in an action for maintaining a nuisance in constructing and operating a steam railroad in a public highway without authority, brought by the owner of lands injuriously affected by the road, and whose property rights are invaded thereby, in which the plaintiff demands relief by way of injunction and special damages to his real property, occasioned by the nuisance,

he may claim in the same action damages for a personal injury 10

sustained from the operation of the road, without negligence on his part, from being thrown from a wagon while driving along the highway on which the railroad was constructed, in consequence of his horses being frightened by the noise of a passing engine and train, and escaping from his control.

The demurrer is for an alleged misjoinder of these causes of action. The allegations in the complaint relating to the personal injury are not separated from the other allegations therein relat

ing to the injury to the real property, so as in form to constitute 11 a separate cause of action, but are blended with them. But a

defendant is not deprived of the right to demur to a complaint for misjoinder of causes of action distinct in themselves, and which cannot be united because they are not separately stated or numbered. (Golding 2. Utley, 60 N. Y., 427.) It is well settled that any unauthorized and continuous obstruction to a public highway constitutes a public nuisance (Denio, J., Davis v. Mayor, etc., 14 N. Y., 524), and an action for damages lies in favor of any person sustaining a special injury in his person or property

therefrom against the party who erected or maintained it. There 12

can be no doubt that the plaintiff could have brought an ordinary legal action for damages for personal injury based upon the allegations in the complaint. The complaint contains no allegation of negligence on the part of the defendants in the operation or management of the train at the time of the alleged injury. Nor was this necessary. Negligence of the defendant is not ordinarily an essential element in an action for damages sustained by reason of a nuisance. The action is founded on the wrongful act in creating or maintaining it, and the negligence of the defendant,

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