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him.”

Whatever may be the true construction of the and without unreasonable burden, clean the snow agreement – whether it extended or not to persons

from his own premises, and the authorities'may justly who might become customers of the plaintiff Baines

and lawfully require that to be done under the juris

diction conferred by their charters. But though the or his successors after defendant had quitted his

municipality makes the necessary regulation, it is not employment — it would at any rate be good as re- thereby relieved from respousibility. The duty regards persons who became customers while the mains, and it must therefore see to it that its ordi. defendant was in that employment; I must there

nance is obeyed. It is entitled however to a reason. fore grant an injunction, but limited to restraining able time within which to perform the duty in the

manner permitted, and is not guilty of negligence if, the defendant from serving or interfering with any observing that the work is being generally done, it persons who were customers of the plaintiff Baines awaits for a reasonable period the action of the citi. at any time during the defendant's employment by zens. But when such reasonable time has been given,

the corporation must compel the adjoining owner or occupants to act, or do the work itself; and if it suffers

the obstruction to remain thereafter, with notice, MUNICIPAL CORPORATIONS- DEFECTIVE actual or constructive, of its existence, it may become STREETS - SNOW AND ICE.

responsible for injuries resulting. Another and dif

fereut emergency sometimes occurs, and was referred NEW YORK COURT OF APPEALS,

to in the charge to the jury. When the streets have APRIL 19, 1887.

been wholly or partially cleaned, it often happens that

a fall of rain, or the melting of adjoining snow, is TAYLOR V. CITY OF YONKERS.

suddenly followed by a severe cold, which covers

everything with a fiim or layer of ice, and makes the It is the duty of a city in New York to keep its sidewalks clear

walks slippery and dangerous. This frozen surface it of snow and ice, so that they may be safe and convenient

is practically impossible to remove until a thaw comes for passage; but it may impose the duty of so doing upon which remedies the evil. The municipality is not the citizens, and it is not guilty of negligence if, observing negligent in awaiting that result. It may and should the work is being generally done, it awaits their action require householders, when the danger is great, to for a reasonable period. When however such reasonable

sprinkle upon the surface ashes or sand or the like as time has been given, the corporation must either compel a measure of prudence and precaution, but is not rethe citizens to act, or do the work itself ; and if it suffers sponsible for their omission. It is no more bound to the obstruction to remain thereafter, with notice, actual put upon the ice, which it cannot reasonably remove, or constructive, of its existence, it will be responsible for

such foreign material, than to cover it with boards. injuries resulting.

The emergency is one which is common to every street It is not negligence on the part of a city in New York to fail in the village or city, and which the corporation is to remove from its sidewalks ice formed by a sudden fall

powerless to combat. Usually it lasts but a few days, of temperature, and which it is practically impossible to and the corporate authorities may a wait, without remove, or to fail to compel its citizens to sprinkle such negligence, a change of temperature, which will reice with ashes or sand to prevent it from being slippery, move the danger. but the city may await a change of temperature which Both of these emergencies are shown to have existed will remove the danger.

in the present case, and as to both the learned trial A slope over a sidewalk in a city, formed by sand and small judge gave to the defendant the full benefit of the rule

stones that had washed out of an embankment from time as we have stated it. But there were further facts. to tiine, being allowed to accumulate, became covered The sidewalk along Buena Vista avenue, where it with sleet and ice during a cold night; and a person, in passed an unoccupied lot, was bounded on its inner going to his place of business early in the morning, fear- line by an unprotected bank of earth. For two years ing to go down the steps in front of his house, attempted the action of rain and frost had thrown upon the walk to walk over the slope, fell, and was injured. Held, that sand and gravel and stones from the bank, until the if the accident was caused by the ice alone, the city would flagging was entirely covered by it, and a new and not be liable; but that if the condition of the slope, sloping grade substituted for the one adopted. The which the city bad negligently allowed to be formed and sand on the inner line was about eight inches in depth, remain over the walk, was a concurring cause of the fall, growing less toward the curb, where it was about one without which the accident would not have happened, the inch. Mixed in with this were stones, some of which city would be responsible.

were as large as apples. When the winter came, this Joseph F. Daly, for appellant.

walk was covered with snow, which was never re

moved. Before the accident, the snow-fall had been John F. Brennan, for respondent.

heavy, but it was evidently not recent; for upon this FINCH, J. This case was submitted to the jury walk it had been trampled down by travel, and by under instructions that a municipal corporation is | freezing and thawing converted into ice. These facts bound to keep its sidewalks safe and convenient for tended to establish negligence on the part of the city. the passage of the public, so far as reasonable diligence If the slope of the walk was not dangerous in the sumand the possession of adequate resources will allow; mer weather, it might become so when coated with and tbe application of this rule to conditions resulting ice in the winter, and those having the care of the from the rigors and changes of a northern winter, and bighway were very blind if they did not foresee the to two emergencies which frequently occur, was very possible danger. No one however appears to have fairly and justly discussed and limited. It often hap- been injured by it when simply in this condition, for pens that in a single day or night every street and the reason, probably, that sand was continually washed Bidewalk in a city or village is covered with a heavy upon it from the adjoining bank. But this protection fall of snow. It is not expected, and cannot be re. disappeared before the plaintiff was injured. On the quired, that the corporation shall itself forthwith em. night preceding, rain fell, which washed the sand from ploy laborers to clean all the walks, and so accomplish the ice, and then froze, covering everything with a new the objeot by a slow and expensive process, when the surface, and making the whole city slippery and danresult may be effected more swiftly and easily by im- gerous for travel. That was just as true of walks posing that duty upon the citizens. Each can promptly, cleaned as of those not cleaned, and it may even be the

fact that the latter, when paved, became by reason of is also another for which no one is responsible, we
their smoothness, the most dangerous of all. That have held that “the plaintiff must fail if his evidence
such was the situation was very strongly showu by the does not show that the damage was produced by the
conduct of plaintiff himself. He boarded in a bouse former cause." Searles v. Manhattan Ry. Co., 101 N.
adjoining the vacant lot of which we have spoken, aud Y. 661, and we add that he must fail also if it is just as
standing so far above the grade of the street thal ten probable that the injury came from one cause as the
steps led down to the sidewalk iu front. On coming out other, because he is bound to make out his case by a
in the morning with a companion, and observing the preponderance of evidence, and the jury must uot be
situation, he hesitated to come down his own steps to left to a mere conjecture, or act upon a bare pos-
the sidewalk, although clear of snow, as we may fairly sibility. In this case that rule was violated. The plain-
assume, and chose rather, as a measure of safety, to tiff slipped upou the ice. That by itself was a sutfi-
take another route. He went through the picket feucecient, certain, and operating cause of the fall. No
at the side, and on to the vacant lot, which was covered other explanation is needed to account for what hap-
with snow, and thence down to the sidewalk, which he pened. It is possible that the slope of the walk bad
essayed to cross, intending to go to his work through something to do with it. It is equally possible that it
the middle of the street and on the roadway. His did not. There is uot a particle of proof that it did.
conduct pictures the situation perfectly. He stepped To affirm it is a pure guess and an absolute specula-
on the new ice surface, just formed, and for the exis- tion. Are we to send it to a jury for them to imagine
tence of which the city was in no respect responsible. what might have been? The great balance of proba-
Had that been the whole of the case, a recovery would bility is that the ice was the efficient cause. There is
have been impossible. But tbis new ice formed ou a no probability, not wholly speculative, that the slope
slope, having a fall toward the curb of six or seven was also such. Its descent was slight (not quite an
inches in ten feet, which the city had negligently suf- inch in a foot), and not more than constantly occurs
fored to remain. If that slope was one concurring in the streets of a city. No knowledge or intelligence
cause of the fall, without which the accident would can determine or ascertain that such a slope bad
pot have happened, the city is liable. We have stated any part or share in the injury; and to send the ques-
the rule to be that “when two causes combine to pro- tion to the jury is simply to let them guess at it, and
duce an injury to a traveller upon a highway, both of then upon that guess to sustain a verdict for damages.
which are in their nature proximate, the one being a I am quite willing to hold cities and villages to a
culpable defect in a highway, and the other some reasonable performance of duties; but I am not will-
occurence for which neither party is responsible, the ing to make them practically insurers by founding
municipalty is liable, provided the injury would not their liability upon mere possibilities.
have been sustained but for such defect." Ring v. For these reasons I think the plaintiff should fail,
City of Cohoes, 77 N. Y. 88; S. C., 33 Am. Rep. 574. and the motion for a nonsuit should have been granted.
Now, the jury were plainly charged that the new ice Judgment reversed, new trial granted; costs to abide
recently formed furnished no ground of negligence on event.
the part of the city, and it necessarily followed that All concur, except Andrews, J., not voting.
the jury found the slope of the walk to have been a
concurrent cause, without which the accident would
not have happened.

NEGOTIABLE INSTRUMENTS LOST CER-
The only remaining inquiry is whether there were

TIFICATE OF DEPOSIT'— TITLE. any facts which permitted that inference, or whether there were none, and the conclusion was mere guess

SUPREME COURT OF OHIO, MARCH 22, 1887. and speculation. The fact proved was that the plaintiff slipped on the ice lying on a slope. The inference,

CITIZENS' NAT. BANK V. BROWN. it is claimed, is natural and logical, and sustained by A certificate of deposit payable in current funds to the order common observation and experience, that both of the of the depositor upon return of the certificate is a negoticonditious entered into the accident as proximate able promissory note. causes. But no one can say, that if the new ice had A negotiable certificate of deposit, if lost before indorsement spread over a level, the plaintiff would not have fallen; by the depositor, can invest the finder with no title, and and there is nothing in the case pointing to the slope the depositor may maintain a suit at law to recover on as a concurrent cause, beyond the bare fact that it ex. such lost certificato upon the refusal of the bank to suristed, and so nothing to redeem the inference sought render the deposit, unless he shall execute to it an indemfrom the domain of mere guess and speculation. The nity bond against possible future loss. And this rule is question involved has been quite earnestly debated in not changed by the terms of the certificate, which makes other States, where it arose under statutes requir- the same payable "on return of the certificate." ing towns to keep the streets safe and convenient. In

RROR to District Court, Hamilton county. Action Maine and Massachusetts it is held, that is besides the

at law to recover on a lost certificate of deposit. defect in the way, there is also another proximate cause Plaintiff received from defeudaut bauk the following of the injury contributing directly to the result, for certificate of deposit: which neither of the parties is in fault, the town is not

“No. 762. Citizens' National Bank. Cincinnati, liable. Moore v. Abbot, 32 Me. 46; Moulton v. Sand.

August 9, 1882. Eugene E. Brown has deposited in ford, 51 id. 127; Marble v. Worcester, 4 Gray, 395; Bil

this bank $1, 145, payable to the order of himself on lings v. Worcester, 102 Mass. 329; 8. C., 3 Am. Rep. 460.

return of this certificate, in current funds;" which These rulings are based largely upon two grounds:

certificate was sigued by the proper officer of the bank. that the town is liable for the defect alone, and that

This certificate he subsequently lost, but before any the proportion of injury due to that cause is impos

indorsement had been made thereon. The bank resible to be asscertained. contrary rule is held in

fused to deliver to him the amount of his deposit unVermont and New Hampsbire. Hunt v. Pownal, 9

less he would execute to it a bond to indemnify it Vt. 411; Winship v. Enfield, 42 N. H. 197. We have

against possible loss from any subsequent claim of any already stated the rule to be in this State that the de

finder or holder of the lost certificate, whereupou fect, even when a concurring cause, must be such that

plaintiff brought this suit. without its operation the accident would not have happened. Where the defect is the sole explavation

Paxton & Warrington, for plaintiff in error. of the injury, there is no difficulty; but where there T. Q. Hildebrant, for defendant in error.

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DICKMAN, J. The record discloses as facts estab- rights of the parties; altering rather the form of adlished to the satisfaction of the court below, and which ministering justice, than impairing in any manner tbe we are not disposed to call in question, that the de- rights of the parties, whether before denominated fendaut in error, on the ninth day of August, 1882, legal or equitable. Lamson v. Pfaff, 1 Hand. 449. deposited with the Citizens' National Bank of Cincin- If a negotiable note payable to bearer, or to order,and pati the sum of $1,145, and received from the bank a indorsed in blank, is lost before maturity, it is right certificate of deposit for that amount, sigued by the that the maker, upon paying its contents, should be proper officer of the bank, bearing date as of that day, made secure against being compelled to pay the same and made payable to the order of the depositor in a second time. But when the lost instrument is not current funds, on the return of the certificate. On payable to bearer, or is payable to order, and is uninthe sixteenth day of September, 1882, the defendant dorsed by the payee, as no legal title in such a case in error 'ost the certificate of deposit, and bas not could pass, so as to invest any one with the privileges since found or recovered it. When lost, the certificate of a bona fide holder in the usual course of trade, no was not indorsed by the defendant in error; and on indemnity would be necessary. If one should find a the eighteenth day of September, 1882, he demanded note negotiable by indorsement, and forge the indorsepayment thereof from the bank, but the bank refused ment, the holder by this title could make no valid to pay the same, unless he would first indemnify it by claim against any one, because the written transferr bond, with good and sufficient sureties, against any would confer no title upon bim; and if the finder luss which it might suffer by reason of the certificate should not forge the indorsement, his action or dem and being held or owned by some person other than him of payment must needs be in the payee's name, and self, who would seek to enforce against the bank the the maker might then plead any judgment already collection thereof.

rendered against him on the note in favor of the payee, The certificate was in effect a promissory note. It or any payment thereon made by him to the payee. possessed all the requisites of a negotiable promissory Among the exceptions as to indemnity, it is said by note, and as such, was governed by the rules and prin- an approved text-writer that there are some cases in ciples applicable to that class of paper. In Howe v. which the defendant can run no risk, and in which the Hartness, 11 Ohio St. 449, it was held that a certificate plaintiff may therefore proceed in a court of equity or of deposit substantially the same as that under con- law without giving a bond of indemnity; that is, where sideration was a negotiable promissory note; and in the note is uot negotiable, and where, though negotiMiller v. Austen, 13 How. 218, where the amount de- able, it is payable to order and unindorsed, or has been posited with the bank was payable only to the order specially indorsed. Daniel Neg. Inst., $ 1481. of the depositor, at a future day certain, upon the re- The reason which permits notes never negotiable to turu of the certificate of deposit, it was recognized as be sued under the expeditious forms of the common the established doctrine that a promise to deliver or law, in preference to the more tedious and expensive to be accountable for so much money is a good bill or ones of chancery, applies, says Parson, in his treatise note; that the sum named in the certificate issued on Notes and Bills, equally well to all notes which, being certain and the promise direct, every reason being negotiable, have not been negotiated. The existed why the indorser of the paper should be held rule as laid down by 2 Greenl. Evi., $ 156, is responsible to his indorsee that could prevail in cases that if the bill or other negotiable security be lost, where the paper indorsed is in the ordinary form of a there can be no remedy upon it by law, unless it was promissory note; and that as such note the State in such a state when lost that no person but the plaincourts generally had treated certificates of deposit tiff could have acquired a right to sue thereon. But payable to order. The fact that the money deposited if there be no danger that the defendant will ever with the plaintiff in error was made payable on return again be liable on the bill or note, as if the indorseof the certificate was not such a contingency as affec- ment were specially restricted to the plaintiff only, or ted the negotiable character of the instrument. Hunt if the instrument was not in dorsed, the plaintiff has V. Divine, 37 Ill. 137; Smilie v. Stevens, 39 Vt. 315; been permitted to recover upon the usual secondary Bellows Falls Bank v. Rutland County Bank, 40 id. 378. evidence; and Judge Story, in considering the remedy

In the view which we take of the case before us, it afforded in equity, and approving the rule allowing a becomes unnecessary to inquire whether the certificate recovery on a lost note at law where it is not negotiwas overdue and payable at the time of its loss, orable, states that the same rule will apply if the note whether a demand before the loss of the certificate was originally negotiable where it has not been inwas an essential prerequisite to the maturity of the dorsed by the payee. Prom. Notes, $ 451. instrument, in order to determine whether one who In accord with the rule holding the maker liable should come into possession of it would be subject to without indemnity, where the payee has lost a negotithe equities that might exist between the bank and able note before indorsing it, is the decision in Thayer the depositor, and whether the bank would be secure v. King, 15 Ohio, 242. That decision was rendered in in paying the amount of the certificate to the deposi. the year 1846, and it has stood approved in this State tor, without exacting from him an indemnity. The from the day of its announcement. We find no adecertificate, though negotiable, was unnegotiable when quate ground for now disturbing it. The court held lost by the payee. It was never indorsed by him, and in that case that an action might be maintained at it becomes a subject of inquiry whether in such case law on a note payable to order, and indorsed in blank, a bond of indemnity to the bank was a condition pre- and lost after it became due. The reason for so hold. cedent to his right of recovery at law on the lost in ing will apply with equal force to the case under construment.

sideration. In the one case it was deemed unnecesIt was said by Lord Ellenborough, in Pierson v. sary to invoke the chancery powers of the court for an Hutchinson, 2 Camp. 211, “ Whether an indemnity be indemnity, as the maker would be protected against a sufficient or insufficient, is a question of which a court double payment of the overdue lost notes by reason of of law cannot judge;" and by Lord Eldon, in Ex their being charged with all equities existing between parle Greenway, 6 Ves. 812, “ I never could understand himself and the owner of the paper; and in the case by what authority courts of law compelled parties to at bar no bond of indemnity was necessary, the bank take the indemnity." But the difficulty which courts being protected against a second payment of the of law have found in adjusting indemnities 18 obvia- certificate of deposit by reason of its not having been ted in this State under our Code of Civil Procedure indorsed before it was lost, whereby no bona fide which settles in the same action the legal and equitable bolder could invalidate the equities between Brown

and the bank. In referring to the contingeucy of a termine whether the bill was unindorsed, or so indouble recovery against a maker who has been com- dorsed that no third party could recover upou it. If pelled to pay Jost negotiable paper, which had fallen the bill had no indorsement, or if it was specially ininto the hands of an innocent holder, who had re- dorsed to the party to whom it was sent, then no third ceived it before due, Read, J., in Thayer v. King, person can interpose a claim." supra, says. “If former payment or recovery would lu Moore v. Fall, 42 Me. 450, the case of Pintard v. be a complete bar to any subsequent payment or re- Tackington, supra, is approvingly cited in support of covery, the reason of the rule ceases, and the objection the doctrine that a recovery may be bad at law withto a recovery by the owner no longer exists. Hence out furnishing an indemnity on a lost note which is if the circumstances of the case are such that the not negotiable, or which, being negotiable, has not negotiable paper can never be produced for paymeut been negotiated. a second time, or if produced would permit no right By statutory provision in Alabama, an action is of recovery in the hands of the holder, no indemnity maintainable at law on a lost negotiable note, which in such case being required to guard against a second had not been negotiated at the time of the loss. But payment, recovery may be had in a court of law. in Branch Bank of Mobile v. Tillman, 12 Ala. 214, the Thus if the instrument be totally destroyed, or if it remedy by statute was declared to be cumulative, and pass into the hands of the holder, charged with all the not designed to repeal or annul all others which were equities which exist against the original holder, the previously recognized at law. The preamble of the action may be at law.”

enactment indicates its true meaning to provide a cerOur attention has been called to leading authorities tain remedy at law for parties who might lose the in different States, in confirmation of the foregoing written evidence of any debt or duty, the necessity for views, all going to establish the doctrine that an action wbich is affirmed to be the uncertainty in the decisat law may be sustained, without tendering an indem- ions of the courts of the State upon the subject. nity, on the lost note though it be negotiable, if it ap- It is manifest that the principle underlying the pears not to have been negotiated, upon giving the authorities to which we have heretofore referred is usual proof necessary to let in parol evidence of a that the payee or owner in an action at law against the written contract.

maker on a lost negotiable instrument need not tender In New York, before the enactment of provisions to him an indemnity, if the paper when lust was in securing the action at law upou lost negotiable paper, such a state that the maker would not be compelled upon tendering a bond of indemnity, it was said in to pay the contents again to a bona fide holder. The Pintard v. Tackington, 10 Johns. 104, that the cases rule which we think should govern in the case at bar which have permitted a recovery at law upon is in keeping with the decision in Rolt v. Wals 4 negotiable paper, which was merely lost, were those Bing. 273, a case overruled in England but not in in which the paper had been ivdorsed before it was America, and wbich in our judgment commends itself lost; and where a plaintiff declared on a promissory as an authoritative exposition of the law on the subpote payable on demand, and stated that the note badject-matter adjudicated. “The question for us," says been lost, and the existence and contents of the note Best, C. J., " is whether the bill which the defendant were proved, and it not appearing that the note was in this cause has accepted be an instrument which can negotiable, or if negotiable, that it had in fact been ever rise in judgment against him? Now, the jury negotiated, it was held that he was entitled to recover have found expressly that the bill was unindorsed, and on the note. See also Rouley v. Ball, 3 Cow. 303; though payable three months after date, it has not McNair v. Gilbert, 3 Wend. 344.

been heard of from 1825 to 1827. There is ho decision In Rogers v. Miller, 4 Scam. 333, the court say that in which the party has been held to be responsible in where the note has not been indorsed at all, or has respect of an outstanding bill unindorsed. In all the been specially indorsed, there, as no danger can arise cases in which a defendant has been holden to be disof its falling into the hands of a bona fide holder, and charged, in respect of a supposed liability on a bill, thus fastening upon the maker a second liability, the the bill has been in such a state as to be likely to be party may recover by showing the loss of the pote used against him." See Long v. Bailie, 2 Camp. 214n. merely, and it contents.

It is contended that the words “payable on return In Depew v. Wheelan, 6 Blackf. 485, it was held that of this certificate" gave the bauk the rigbt to hold the the payee of a lost promissory note, transferable by depositor to the letter of the contract, and to refuse indorsement under the statute, uot having indorsed payment until the certificate was surrendered, or it, may maintain an action at law on it against the until a sufficient indemnity had been offered. We do maker. Dewey, J., in delivering the opinion of the not understand that those words import a stipulation court, observed: “The note is averred in the declara- for an indemnity in case of a failure to return the tion to be lost, but there is no averment or proof that certificate, or to settle the terms upon which the payee it was ever indorsed by the plaintiffs. There was would be entitled to his money, in the event of a loss testimony, that if it be lost, it was lost from the pos- of the instrument. Under some circumstances an insession of the agent of the plaintiffs. This we think demnity might be properly required for the maker's raises a fair presumption that they never transferred protection, as where the instrument is payable to it; and of course no other holder can show title to it. bearer, or to order, and indorsed at the time of its The makers are in no danger of a second liability.” loss, while under other circumstances such an indem

In Luzell v. Lazell, 12 Vt. 443, the court pronounces nity might be wholly unnecessary. The words “paythe law as well settled that when a note not negotiable, able on return of this certificate cannot be construed or if negotiable by being payable to order. not nego- to have an effect beyond what might be sufficient for tiated, is lost, an action at law may be maintained on the safety of the bank, upon its paying this certificate. the note, on proof of its loss, to recover its contents. At the most, the bank should not demand indemnity

Aborn v. Bosworth, 1 R. I. 401, was the case of the when not necessary to protect itself against a second lost bill of exchange drawn upon H. and payable to liability. A note payable to bearer requires a physical A., the plaintiff, or order, on presentment. In its presentation of the instrument before payment, as transmission to the agent of the plaintiff, the bill was much as a certificate of deposit “payable on its relost on board a steamer. In an action against the turn." By the literal terms of the note, there must drawer of the bill, in whish there was a verdict for the be a bearer of it before payment can be exacted. And plaintiff, Greene, C. J., charged the jury: “If you yet, in the light of Thayer v. King, supra, it will not find that the bill was not destroyed, you will then de- be claimed that a note payable to bearer, and lost after

Bct

und

he 21

1

it becomes due, cannot be collected without first pro- property for its corporate use, did on the 1st day of ducing the note or tendering an iudemnity. lu every May, 1881, construct, as an extension of its system of promissory note there is an implied undertaking by tracks and road bed, a viaduct or elevated roadway the payee or holder to return it to the maker on pay- and railroad thereon, along the south side of Filbert ment of the money; and an express undertaking to street, opposite to their several lots of ground; that return it could have no greater force, nor change or since December 1, 1881, the said company, defendant, modify the legal effect of the instrument. As expres- bas used and operated the said viaduct in connection bed by Peck, J., in Smilie v. Stevens, supra,

" tbe return with its other tracks as a coutinuous line of railroad, of the certificate is an act to be done with the instru- for the transportation of passengers and freight to and ment itself, contemporaneous with the payment, and from its terminal passenger and freight station, and is no more than would be the implied duty of the as a yard for shifting and making up trains. That in holder of a negotiable note or bill, in the absence of consequence of the noise, disturbance, smoke, sparks such stipulation, as it is the duty of the holder to deliver and noisome and unhealthy vapors occasioned and up a negotiable promissory note, or bill, on the pay- emitted by the defendant's cars and locomotives, ment of it by the maker, as a voucher for his security, great injury has been done to the plaintiffs' property, or show a suficient excuse for not doing so." An It is not alleged that any injury has resulted from the inability to return the certificate, by reason of its loss, erection of this elevated roadway, nor indeed could it cannot operate as a payment or satisfaction. The truthfully be so alleged, for the erection is on the demaker is not thereby discharged; but the question tendant's own ground, on the south side of the said arises as to what, if any, conditions should be imposed street, which street is some fifty-one feet wide, so that upon the loser, before he can recover of the maker. no part of the plaintiffs' property or any right of way, Having failed to return the certificate, though re- or other appurtenance thereunto belonging has been quired to tender an indemnity in cases where the taken or used in the erection or construction of said maker would not be safe in paying without such re- viaduct. The damage complained of results wbolly turn, he should not be required to go further, and from the manner in which the roadway is used; reindemnify when the certificate was not negotiated at sults from the noise, smoke and dust arising from the the time of its loss, and its non-delivery to the maker use of the engines and cars, the necessary consequences would not subject him to a second payment.

of the use of the property as a steam railway. As the It is assigned as error that the court below allowed allegations thus made were in whole or in part supinterest on the certificate of deposit from the eigh-ported by evidence, the learned judge instructed the teenth day of September, 1882. On that day Brown jury that the measure of damage would be the differrequested payment, and the bank refused. It was in- ence between the market value of the several propercumbent upon him to produce and surrender the ties before the building of the viaduct and the same certificate, or give an adequate reason for his inability value after the structure was completed; in other to do 80. Such a reason was furnished in the loss of words, the same rule is applied to the cases in hand the certificate. As the bank notwithstanding deemed

as that which applies in the case of an appropriation, it advisable to withhold payment, the certificate or taking under the right of eminent domain, exceptshould bear interest from the day the bank declined ing, of course, that as no property of any kind was

taken that element of damage was not considered. Judgment afirmed.

This instruction, together with the negative answer of Spear and Minshall, J.J., dissenting.

the court to the defendant's first point, raises all the questions that require consideration in this case. That

there was error in the instruction above stated is to RAILROADS - LIABILITY FOR INJURY TO

us very clear. This structure having been erected on

the defendant's own land, and no property or rights ADJACENT PROPERTY BY OPERATING.

of the plaintiffs having been seized, appropriated or SUPREME COURT OF PENNSYLVANIA, MAY 31, 1887.

interfered with, we cannot understand how a rule

which applies only to a taking, and never did apply to PENNSYLVANIA RAILROAD Co. v. LIPPINCOTT, SAME

any thing else, can be adapted to a case where there

has been no such taking. It is not pretended that the V. CHURCH OF THE COVENANT, SAME V. STEINER.

erection itself did the plaintiffs any harm, but its use A company operating a railroad upon its own property in the only, that is, the running of locomotives on it.

usual manner is not liable to the owners of neighboring We agree indeed that if the ordinary and proper property for deterioration in the value of their property use of the railway is to be regarded as an element of caused by the noise, smoke, dust and other incidents of damage, as to a certain extent it is in the case of a the operation, not amounting to a nuisance.

condemnation, the rule stated is the correct one, but as this rule is not one of common law, but of statute,

it cannot apply to the case now being considered. Wayne McVeagh (with him A. H. Wintersteen, Geo.

Railroad Co. v. Yeiser, 3 Penn. 366. Unless therefore Tucker Bispham, and Jas. A. Logan), for plaintiff in

the case can be brought within some statute, the rule by which damages are measured by advantages and

disadvantages ought not to have been adopted, for as G. Heide Norris, M. Hampton Todd and E. Green

was said, in the case cited per Mr. Justice Rogers, “it ough Platt (with them Leoni Melick and Warren G.

is a principle well settled by many adjudicated cases, Griffith), contra.

that an action does not lie for a reasonable use of one's GORDON, J. The abuve named three several cases, right though it be to the injury of another. For the involving as tber do similar facts and principles of lawful use of his own property, a party is not answer. law, and having been argued together, we dispose of able in damages, unless on proof of negligence. ' How in one opinion. The actions are case, and the plain- then we ask, can a lawful erection by the Pennsyltiffs

, who own property on the north side of Filbert vania Railroad Company, on its own ground, be the Street, in the city of Philadelphia, severally complain subject of damage to the adjoining land owners? And that the Pennsylvania Railroad Company, being a cor- why may it not, as put by the defendant's first point, poration duly chartered under the laws of this State, operate and use, in a lawful manner, its Filbert street aud invested with the privilege of taking private branoh, without subjecting itself to an action for

to pay.

The opinion states the case.

error.

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