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TAYLOR V. CITY OF YONKERS.

It is the duty of a city in New York to keep its sidewalks clear of snow and ice, so that they may be safe and convenient for passage; but it may impose the duty of so doing upon the citizens, and it is not guilty of negligence if, observing the work is being generally done, it awaits their action for a reasonable period. When however such reasonable time has been given, the corporation must either compel the citizens to act, or do the work itself; and if it suffers the obstruction to remain thereafter, with notice, actual or constructive, of its existence, it will be responsible for injuries resulting.

It is not negligence on the part of a city in New York to fail to remove from its sidewalks ice formed by a sudden fall of temperature, and which it is practically impossible to remove, or to fail to compel its citizens to sprinkle such ice with ashes or sand to prevent it from being slippery, but the city may await a change of temperature which will remove the danger.

A slope over a sidewalk in a city, formed by sand and small stones that had washed out of an embankment from time to time, being allowed to accumulate, became covered with sleet and ice during a cold night; and a person, in going to his place of business early in the morning, fearing to go down the steps in front of his house, attempted to walk over the slope, fell, and was injured. Held, that if the accident was caused by the ice alone, the city would not be liable; but that if the condition of the slope, which the city had negligently allowed to be formed and remain over the walk, was a concurring cause of the fall, without which the accident would not have happened, the city would be responsible.

Joseph F. Daly, for appellant.

John F. Brennan, for respondent.

FINCH, J. This case was submitted to the jury under instructions that a municipal corporation is bound to keep its sidewalks safe and convenient for the passage of the public, so far as reasonable diligence and the possession of adequate resources will allow; and the application of this rule to conditions resulting from the rigors and changes of a northern winter, and to two emergencies which frequently occur, was very fairly and justly discussed and limited. It often happens that in a single day or night every street and sidewalk in a city or village is covered with a heavy fall of snow. It is not expected, and cannot be re. quired, that the corporation shall itself forthwith employ laborers to clean all the walks, and so accomplish the object by a slow and expensive process, when the result may be effected more swiftly and easily by imposing that duty upon the citizens. Each can promptly,

and without unreasonable burden, clean the snow from his own premises, and the authorities may justly and lawfully require that to be done under the jurisdiction conferred by their charters. But though the municipality makes the necessary regulation, it is not thereby relieved from responsibility. The duty remains, and it must therefore see to it that its ordinance is obeyed. It is entitled however to a reasoDable time within which to perform the duty in the manner permitted, and is not guilty of negligence if observing that the work is being generally done, it awaits for a reasonable period the action of the citizens. 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, actual or constructive, of its existence, it may become responsible for injuries resulting. Another and different emergency sometimes occurs, and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned, it often happens that a fall of rain, or the melting of adjoining snow, is suddenly followed by a severe cold, which covers everything with a film or layer of ice, and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent in awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like as a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material, than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await, without negligence, a change of temperature, which will remove the danger.

Both of these emergencies are shown to have existed in the present case, and as to both the learned trial judge gave to the defendant the full benefit of the rule as we have stated it. But there were further facts. The sidewalk along Buena Vista avenue, where it passed an unoccupied lot, was bounded on its inner line by an unprotected bank of earth. For two years the action of rain and frost had thrown upon the walk sand and gravel and stones from the bank, until the flagging was entirely covered by it, and a new and sloping grade substituted for the one adopted. The sand on the inner line was about eight inches in depth, growing less toward the curb, where it was about one inch. Mixed in with this were stones, some of which were as large as apples. When the winter came, this walk was covered with snow, which was never removed. Before the accident, the snow-fall had been heavy, but it was evidently not recent; for upon this walk it had been trampled down by travel, and by freezing and thawing converted into ice. These facts tended to establish negligence on the part of the city. If the slope of the walk was not dangerous in the summer weather, it might become so when coated with ice in the winter, and those having the care of the highway were very blind if they did not foresee the possible danger. No one however appears to have been injured by it when simply in this condition, for the reason, probably, that sand was continually washed upon it from the adjoining bank. But this protection disappeared before the plaintiff was injured. On the night preceding, rain fell, which washed the sand from the ice, and then froze, covering everything with a new surface, and making the whole city slippery and dangerous for travel. That was just as true of walks cleaned as of those not cleaned, and it may even be the

fact that the latter, when paved, became by reason of their smoothness, the most dangerous of all. That such was the situation was very strongly shown by the conduct of plaintiff himself. He boarded in a house adjoining the vacant lot of which we have spoken, and standing so far above the grade of the street that ten steps led down to the sidewalk in front. On coming out in the morning with a companion, and observing the situation, he hesitated to come down his own steps to the sidewalk, although clear of snow, as we may fairly assume, and chose rather, as a measure of safety, to take another route. He went through the picket fence at the side, and on to the vacant lot, which was covered with snow, and thence down to the sidewalk, which he essayed to cross, intending to go to his work through the middle of the street and on the roadway. His conduct pictures the situation perfectly. He stepped on the new ice surface, just formed, and for the existence of which the city was in no respect responsible. Had that been the whole of the case, a recovery would have been impossible. But this new ice formed on a slope, having a fall toward the curb of six or seven inches in ten feet, which the city had negligently suffered to remain. If that slope was one concurring cause of the fall, without which the accident would not have happened, the city is liable. We have stated the rule to be that "when two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in a highway, and the other some occurence for which neither party is responsible, the municipalty is liable, provided the injury would not have been sustained but for such defect." Ring v. City of Cohoes, 77 N. Y. 88; S. C., 33 Am. Rep. 574. Now, the jury were plainly charged that the new ice recently formed furnished no ground of negligence on the part of the city, and it necessarily followed that the jury found the slope of the walk to have been a concurrent cause, without which the accident would not have happened.

The

The only remaining inquiry is whether there were any facts which permitted that inference, or whether there were none, and the conclusion was mere guess and speculation. The fact proved was that the plaintiff slipped on the ice lying on a slope. The inference, it is claimed, is natural and logical, and sustained by common observation and experience, that both of the conditions entered into the accident as proximate causes. But no one can say, that if the new ice had spread over a level, the plaintiff would not have fallen; and there is nothing in the case pointing to the slope as a concurrent cause, beyond the bare fact that it existed, and so nothing to redeem the inference sought from the domain of mere guess and speculation. question involved has been quite earnestly debated in other States, where it arose under statutes requir ing towns to keep the streets safe and convenient. In Maine and Massachusetts it is held, that if besides the defect in the way, there is also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. Moore v. Abbot, 32 Me. 46; Moulton v. Sandford, 51 id. 127; Marble v. Worcester, 4 Gray, 395; Billings v. Worcester, 102 Mass. 329; S. C., 3 Am. Rep. 460. These rulings are based largely upon two grounds: that the town is liable for the defect alone, and that the proportion of injury due to that cause is impossible to be asscertained. A contrary rule is held in Vermont and New Hampshire. Hunt v. Pownal, 9 Vt. 411; Winship v. Enfield, 42 N. H. 197. We have already stated the rule to be in this State that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury, there is no difficulty; but where there

is also another for which no one is responsible, we have held that "the plaintiff must fail if his evidence does not show that the damage was produced by the former cause." Searles v. Manhattan Ry. Co., 101 N. Y. 661, and we add that he must fail also if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by a preponderance of evidence, and the jury must not be left to a mere conjecture, or act upon a bare possibility. In this case that rule was violated. The plaintiff slipped upon the ice. That by itself was a sufficient, certain, and operating cause of the fall. No other explanation is needed to account for what happened. It is possible that the slope of the walk had something to do with it. It is equally possible that it did not. There is not a particle of proof that it did. To affirm it is a pure guess and an absolute speculation. Are we to send it to a jury for them to imagine what might have been? The great balance of probability is that the ice was the efficient cause. There is no probability, not wholly speculative, that the slope was also such. Its descent was slight (not quite an inch in a foot), and not more than constantly occurs in the streets of a city. No knowledge or intelligence can determine or ascertain that such a slope had any part or share in the injury; and to send the question to the jury is simply to let them guess at it, and then upon that guess to sustain a verdict for damages. I am quite willing to hold cities and villages to a reasonable performance of duties; but I am not willing to make them practically insurers by founding their liability upon mere possibilities.

For these reasons I think the plaintiff should fail, and the motion for a nonsuit should have been granted. Judgment reversed, new trial granted; costs to abide event.

All concur, except Andrews, J., not voting.

NEGOTIABLE INSTRUMENTS LOST CERTIFICATE OF DEPOSIT — TITLE.

SUPREME COURT OF OHIO, MARCH 22, 1887.

CITIZENS' NAT. BANK V. BROWN.

A certificate of deposit payable in current funds to the order of the depositor upon return of the certificate is a negotiable promissory note.

A negotiable certificate of deposit, if lost before indorsement by the depositor, can invest the finder with no title, and the depositor may maintain a suit at law to recover on such lost certificate upon the refusal of the bank to surrender the deposit, unless he shall execute to it an indemnity bond against possible future loss. And this rule is not changed by the terms of the certificate, which makes the same payable "on return of the certificate." RROR to District Court, Hamilton county. Action at law to recover on a lost certificate of deposit. Plaintiff received from defendant bank the following certificate of deposit:

ERRO

"No. 762. Citizens' National Bank. Cincinnati, August 9, 1882. Eugene E. Brown has deposited in this bank $1,145, payable to the order of himself on return of this certificate, in current funds;" which certificate was signed by the proper officer of the bank. This certificate he subsequently lost, but before any indorsement had been made thereon. The bank refused to deliver to him the amount of his deposit unless he would execute to it a bond to indemnify it against possible loss from any subsequent claim of any finder or holder of the lost certificate, whereupou plaintiff brought this suit.

Paxton & Warrington, for plaintiff in error.
T. Q. Hildebrant, for defendant in error.

DICKMAN, J. The record discloses as facts established to the satisfaction of the court below, and which we are not disposed to call in question, that the defendant in error, on the ninth day of August, 1882, deposited with the Citizens' National Bank of Cincinnati the sum of $1,145, and received from the bank a certificate of deposit for that amount, signed by the proper officer of the bank, bearing date as of that day, and made payable to the order of the depositor in current funds, on the return of the certificate. On the sixteenth day of September, 1882, the defendant in error lost the certificate of deposit, and has not since found or recovered it. When lost, the certificate was not indorsed by the defendant in error; and ou the eighteenth day of September, 1882, he demanded payment thereof from the bank, but the bank refused to pay the same, unless he would first indemnify it by bond, with good and sufficient sureties, against any loss which it might suffer by reason of the certificate being held or owned by some person other than himself, who would seek to enforce against the bank the collection thereof.

rights of the parties; altering rather the form of administering justice, than impairing in any manner the rights of the parties, whether before denominated legal or equitable. Lamson v. Pfaff, 1 Hand. 449.

If a negotiable note payable to bearer, or to order, and indorsed in blank, is lost before maturity, it is right that the maker, upon paying its contents, should be made secure against being compelled to pay the same a second time. But when the lost instrument is not payable to bearer, or is payable to order, and is unindorsed by the payee, as no legal title in such a case could pass, so as to invest any one with the privileges of a bona fide holder in the usual course of trade, no indemnity would be necessary. If one should find a note negotiable by indorsement, and forge the indorsement, the holder by this title could make no valid claim against any one, because the written transferr would confer no title upon him; and if the finder should not forge the indorsement, his action or demand of payment must needs be in the payee's name, and the maker might then plead any judgment already rendered against him on the note in favor of the payee, or any payment thereon made by him to the payee.

Among the exceptions as to indemnity, it is said by an approved text-writer that there are some cases in which the defendant can run no risk, and in which the plaintiff may therefore proceed in a court of equity or law without giving a bond of indemnity; that is, where the note is not negotiable, and where, though negoti

specially indorsed. Daniel Neg. Inst., § 1481.

The reason which permits notes never negotiable to be sued under the expeditious forms of the common law, in preference to the more tedious and expensive ones of chancery, applies, says Parson, in his treatise on Notes and Bills, equally well to all notes which, being negotiable, have not been negotiated. The rule as laid down by 2 Greenl. Evi., § 156, is that if the bill or other negotiable security be lost, there can be no remedy upon it by law, unless it was in such a state when lost that no person but the plaintiff could have acquired a right to sue thereon. But if there be no danger that the defendant will ever again be liable on the bill or note, as if the indorsement were specially restricted to the plaintiff only, or if the instrument was not in dorsed, the plaintiff has been permitted to recover upon the usual secondary evidence; and Judge Story, in considering the remedy afforded in equity, and approving the rule allowing a recovery on a lost note at law where it is not negotiable, states that the same rule will apply if the note was originally negotiable where it has not been indorsed by the payee. Prom. Notes, § 451.

The certificate was in effect a promissory note. It possessed all the requisites of a negotiable promissory note, and as such, was governed by the rules and principles applicable to that class of paper. In Howe v. Hartness, 11 Ohio St. 449, it was held that a certificate of deposit substantially the same as that under consideration was a negotiable promissory note; and in Miller 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 of the depositor, at a future day certain, upon the return of the certificate of deposit, it was recognized as the established doctrine that a promise to deliver or to be accountable for so much money is a good bill or note; that the sum named in the certificate issued being certain and the promise direct, every reason existed why the indorser of the paper should be held responsible to his indorsee that could prevail in cases where the paper indorsed is in the ordinary form of a promissory note; and that as such note the State courts generally had treated certificates of deposit payable to order. The fact that the money deposited with the plaintiff in error was made payable on return of the certificate was not such a contingency as affected the negotiable character of the instrument. Hunt v. Divine, 37 Ill. 137; Smilie v. Stevens, 39 Vt. 315; Bellows Falls Bank v. Rutland County Bank, 40 id. 378. In the view which we take of the case before us, it becomes unnecessary to inquire whether the certificate was overdue and payable at the time of its loss, or whether a demand before the loss of the certificate was an essential prerequisite to the maturity of the instrument, in order to determine whether one who should come into possession of it would be subject to the equities that might exist between the bank and the depositor, and whether the bank would be secure in paying the amount of the certificate to the depositor, without exacting from him an indemnity. The certificate, though negotiable, was unnegotiable when lost by the payee. It was never indorsed by him, and it becomes a subject of inquiry whether in such case a bond of indemnity to the bank was a condition precedent to his right of recovery at law on the lost instrument.

It was said by Lord Ellenborough, in Pierson v. Hutchinson, 2 Camp. 211, "Whether an indemnity be sufficient or insufficient, is a question of which a court of law cannot judge;" and by Lord Eldon, in Ex parte Greenway, 6 Ves. 812, "I never could understand by what authority courts of law compelled parties to take the indemnity." But the difficulty which courts of law have found in adjusting indemnities 18 obviated in this State under our Code of Civil Procedure

In accord with the rule holding the maker liable without indemnity, where the payee has lost a negotiable note before indorsing it, is the decision in Thayer v. King, 15 Ohio, 242. That decision was rendered in the year 1846, and it has stood approved in this State from the day of its announcement. We find no adequate ground for now disturbing it. The court held in that case that an action might be maintained at law on a note payable to order, and indorsed in blank, and lost after it became due. The reason for so holding will apply with equal force to the case under consideration. In the one case it was deemed unnecessary to invoke the chancery powers of the court for an indemnity, as the maker would be protected against a double payment of the overdue lost notes by reason of their being charged with all equities existing between himself and the owner of the paper; and in the case at bar no bond of indemnity was necessary, the bank being protected against a second payment of the certificate of deposit by reason of its not having been indorsed before it was lost, whereby no bona fide

which settles in the same action the legal and equitable holder could invalidate the equities between Brown

and the bank. In referring to the contingency of a double recovery against a maker who has been compelled to pay lost negotiable paper, which had fallen into the hands of an innocent holder, who had received it before due, Read, J., in Thayer v. King, supra, says. "If former payment or recovery would be a complete bar to any subsequent payment or recovery, the reason of the rule ceases, and the objection to a recovery by the owner no longer exists. Hence if the circumstances of the case are such that the negotiable paper can never be produced for payment a second time, or if produced would permit no right of recovery in the hands of the holder, no indemnity in such case being required to guard against a second payment, recovery may be had in a court of law. Thus if the instrument be totally destroyed, or if it pass into the hands of the holder, charged with all the equities which exist against the original holder, the action may be at law."

Our attention has been called to leading authorities in different States, in confirmation of the foregoing views, all going to establish the doctrine that an action at law may be sustained, without tendering an indemnity, on the lost note though it be negotiable, if it appears not to have been negotiated, upon giving the usual proof necessary to let in parol evidence of a written contract.

termine whether the bill was unindorsed, or so indorsed that no third party could recover upon it. If the bill had no indorsement, or if it was specially indorsed to the party to whom it was sent, then no third person can interpose a claim."

In Moore v. Fall, 42 Me. 450, the case of Pintard v. Tackington, supra, is approvingly cited in support of the doctrine that a recovery may be had at law without furnishing an indemnity on a lost note which is not negotiable, or which, being negotiable, has not been negotiated.

By statutory provision in Alabama, an action is maintainable at law on a lost negotiable note, which had not been negotiated at the time of the loss. But in Branch Bank of Mobile v. Tillman, 12 Ala. 214, the remedy by statute was declared to be cumulative, and not designed to repeal or annul all others which were previously recognized at law. The preamble of the enactment indicates its true meaning to provide a certain remedy at law for parties who might lose the written evidence of any debt or duty, the necessity for which is affirmed to be the uncertainty in the decisions of the courts of the State upon the subject.

It is manifest that the principle underlying the authorities to which we have heretofore referred is that the payee or owner in an action at law against the maker on a lost negotiable instrument need not tender to him an indemnity, if the paper when lost was in such a state that the maker would not be compelled to pay the contents again to a bona fide holder. The rule which we think should govern in the case at bar is in keeping with the decision in Rolt v. Watson, 4 Bing. 273, a case overruled in England but not in America, and which in our judgment commends itself as an authoritative exposition of the law on the sub

In New York, before the enactment of provisions securing the action at law upon lost negotiable paper, upon tendering a bond of indemnity, it was said in Pintard v. Tackington, 10 Johns. 104, that the cases which have not permitted a recovery at law upon negotiable paper, which was merely lost, were those in which the paper had been indorsed before it was lost; and where a plaintiff declared on a promissory note payable on demand, and stated that the note hadject-matter adjudicated. The question for us," says been lost, and the existence and contents of the note were proved, and it not appearing that the note was negotiable, or if negotiable, that it had in fact been negotiated, it was held that he was entitled to recover on the note. See also Rowley v. Ball, 3 Cow. 303; McNair v. Gilbert, 3 Wend. 344.

In Rogers v. Miller, 4 Scam. 333, the court say that where the note has not been indorsed at all, or has been specially indorsed, there, as no danger can arise of its falling into the hands of a bona fide holder, and thus fastening upon the maker a second liability, the party may recover by showing the loss of the note merely, and it contents.

In Depew v. Wheelan, 6 Blackf. 485, it was held that the payee of a lost promissory note, transferable by indorsement under the statute, not having indorsed it, may maintain an action at law on it against the maker. Dewey, J., in delivering the opinion of the court, observed: "The note is averred in the declaration to be lost, but there is no averment or proof that it was ever indorsed by the plaintiffs. There was testimony, that if it be lost, it was lost from the possession of the agent of the plaintiffs. This we think raises a fair presumption that they never transferred it; and of course no other holder can show title to it. The makers are in no danger of a second liability."

In Luzell v. Lazell, 12 Vt. 443, the court pronounces the law as well settled that when a note not negotiable, or if negotiable by being payable to order. not negotiated, is lost, an action at law may be maintained on the note, on proof of its loss, to recover its contents.

Aborn v. Bosworth, 1 R. I. 401, was the case of the lost bill of exchange drawn upon H. and payable to A., the plaintiff, or order, on presentment. In its transmission to the agent of the plaintiff, the bill was lost on board a steamer. In an action against the drawer of the bill, in which there was a verdict for the plaintiff, Greene, C. J., charged the jury: "If you find that the bill was not destroyed, you will then de

Best, C. J., is whether the bill which the defendant in this cause has accepted be an instrument which can ever rise in judgment against him? Now, the jury have found expressly that the bill was unindorsed, and though payable three months after date. it has not been heard of from 1825 to 1827. There is ho decision in which the party has been held to be responsible in respect of an outstanding bill unindorsed. In all the cases in which a defendant has been holden to be discharged, in respect of a supposed liability on a bill, the bill has been in such a state as to be likely to be used against him." See Long v. Bailie, 2 Camp. 214n.

It is contended that the words "payable on return of this certificate" gave the bank the right to hold the depositor to the letter of the contract, and to refuse payment until the certificate was surrendered, or until a sufficient indemnity had been offered. We do not understand that those words import a stipulation for an indemnity in case of a failure to return the certificate, or to settle the terms upon which the payee would be entitled to his money, in the event of a loss of the instrument. Under some circumstances an indemnity might be properly required for the maker's protection, as where the instrument is payable to bearer, or to order, and indorsed at the time of its loss, while uuder other circumstances such an indemnity might be wholly unnecessary. The words "payable on return of this certificate" cannot be construed to have an effect beyond what might be sufficient for the safety of the bank, upon its paying this certificate. At the most, the bank should not demand indemnity when not necessary to protect itself against a second liability. A note payable to bearer requires a physical presentation of the instrument before payment, as much as a certificate of deposit "payable on its return. By the literal terms of the note, there must be a bearer of it before payment can be exacted. And yet, in the light of Thayer v. King, supra, it will not be claimed that a note payable to bearer, and lost after

it becomes due, cannot be collected without first producing the note or tendering an indemnity. In every promissory note there is an implied undertaking by the payee or holder to return it to the maker on payment of the money; and an express undertaking to return it could have no greater force, nor change or modify the legal effect of the instrument. As expressed by Peck, J., in Smilie v. Stevens, supra, "the return of the certificate is an act to be done with the instrument itself, contemporaneous with the payment, and is no more than would be the implied duty of the holder of a negotiable note or bill, in the absence of such stipulation, as it is the duty of the holder to deliver up a negotiable promissory note, or bill, on the payment of it by the maker, as a voucher for his security, or show a sufficient excuse for not doing so." An inability to return the certificate, by reason of its loss, cannot operate as a payment or satisfaction. The maker is not thereby discharged; but the question arises as to what, if any, conditions should be imposed upon the loser, before he can recover of the maker. Having failed to return the certificate, though required to tender an indemnity in cases where the maker would not be safe in paying without such return, he should not be required to go further, and indemnify when the certificate was not negotiated at the time of its loss, and its non-delivery to the maker would not subject him to a second payment.

It is assigned as error that the court below allowed interest on the certificate of deposit from the eigh- | teenth day of September, 1882. On that day Brown requested payment, and the bank refused. It was incumbent upon him to produce and surrender the certificate, or give an adequate reason for his inability to do so. Such a reason was furnished in the loss of the certificate. As the bank notwithstanding deemed it advisable to withhold payment, the certificate should bear interest from the day the bank declined to pay.

Judgment affirmed.

Spear and Minshall, J.J., dissenting.

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G. Heide Norris, M. Hampton Todd and E. Greenough Platt (with them Leoni Melick and Warren G. Griffith), contra.

GORDON, J. The above named three several cases, involving as they do similar facts and principles of law, and having been argued together, we dispose of in one opinion. The actions are case, and the plaintiffs, who own property on the north side of Filbert street, in the city of Philadelphia, severally complain that the Pennsylvania Railroad Company, being a corporation duly chartered under the laws of this State, and invested with the privilege of taking private

property for its corporate use, did on the 1st day of May, 1881, construct, as an extension of its system of tracks and road bed, a viaduct or elevated roadway and railroad thereon, along the south side of Filbert street, opposite to their several lots of ground; that since December 1, 1881, the said company, defendant, has used and operated the said viaduct in connection with its other tracks as a continuous line of railroad, for the transportation of passengers and freight to and from its terminal passenger and freight station, and as a yard for shifting and making up trains. That in consequence of the noise, disturbance, smoke, sparks and noisome and unhealthy vapors occasioned and emitted by the defendant's cars and locomotives, great injury has been done to the plaintiffs' property, It is not alleged that any injury has resulted from the erection of this elevated roadway, nor indeed could it truthfully be so alleged, for the erection is on the defendant's own ground, on the south side of the said street, which street is some fifty-one feet wide, so that no part of the plaintiffs' property or any right of way, or other appurtenance thereunto belonging has been taken or used in the erection or construction of said viaduct. The damage complained of results wholly from the manner in which the roadway is used; results from the noise, smoke and dust arising from the use of the engines and cars, the necessary consequences of the use of the property as a steam railway. As the allegations thus made were in whole or in part supported by evidence, the learned judge instructed the jury that the measure of damage would be the difference between the market value of the several properties before the building of the viaduct and the same value after the structure was completed; in other words, the same rule is applied to the cases in hand as that which applies in the case of an appropriation, or taking under the right of eminent domain, excepting, of course, that as no property of any kind was taken that element of damage was not considered. This instruction, together with the negative answer of 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 us very clear. This structure having been erected on the defendant's own land, and no property or rights of the plaintiffs having been seized, appropriated or interfered with, we cannot understand how a rule which applies only to a taking, and never did apply to any thing else, can be adapted to a case where there has been no such taking. It is not pretended that the erection itself did the plaintiffs any harm, but its use only, that is, the running of locomotives on it.

We agree indeed that if the ordinary and proper use of the railway is to be regarded as an element of damage, as to a certain extent it is in the case of a 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. Railroad Co. v. Yeiser, 3 Penn. 366. Unless therefore 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 was said, in the case cited per Mr. Justice Rogers, "it is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one's right though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence. How then we ask, can a lawful erection by the Pennsylvania Railroad Company, on its own ground, be the subject of damage to the adjoining land-owners? And why may it not, as put by the defendant's first point, operate and use, in a lawful manner, its Filbert street branch, without subjecting itself to an action for

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