APPEAL by the plaintiff, Hannah Beauchamp, from two judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 20th day November, 1909, and the 19th day of March, 1910, respectively, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case upon a trial at the Kings County Trial Term.
John M. Gardner [Jonathan Deyo with him on the brief], for the appellant.
Stephen C. Baldwin, for the respondents Excelsior Brick Company and others.
Abram F. Servin, for the respondent J. Esler Eckerson.
The plaintiff appeals from several judgments of the Trial Term in Kings county, entered in this action, which dismissed her complaint at the close of her evidence as against respective defendants. The action was brought to recover damages for personal injuries, and liability was asserted against all of the defendants on the ground that they maintained a public nuisance through which the plaintiff suffered injury. The question of law involved in this appeal is 'whether admitting all the facts presented, and giving to the plaintiff the advantage of every inference that can properly be drawn from the facts presented, an issue of fact is presented for the determination of the jury.' (Kraus v. Birnbaum, 200 N.Y. 130, 133, and cases cited.)
It appears that on the night of January 8, 1906, the plaintiff, together with her husband and children, occupied a small brick house located near a public highway in the village of Haverstraw known as Liberty street. This street was on the east side of the house, about fifteen feet away. The Beauchamp family had occupied this house some seven years prior to the night referred to, and had rented it during that period from the defendant the Excelsior Brick Company on what appears to have been a monthly hiring. The house was located near the crest of a deep excavation made by the defendant the Excelsior Brick Company a number of years before to obtain clay for brickmaking. When the plaintiff's family
went originally to reside in the house in question the east side of the house was distant from the crest of the pit about twenty feet, but in course of time, under the action of rain and snow, the crest neared the house until it became but about three feet distant. From the crest of the pit, as it adjoined the house, to its bottom there was a distance of about sixty feet, shelving sharply at an angle of about ninety-five degrees. This pit extended to the north, northeast and northwest of the plaintiff's house. Adjoining it to the north, and separated only by an invisible line, was another pit situated upon what is known as the 'Gillies property,' and similar in characteristics as to depth, and next to the Gillies property on the north, and immediately adjoining, was still another pit on what was known as the Eckerson property. All three pits formed together one very large and very deep excavation, the crest of which fringed upon various public highways of the village. The topsoil of the place where the pits were located was originally sand about twenty feet in depth; the lower stratum of the soil was moist clay, growing wetter as the depth increased. The defendant the Excelsior Company had stopped digging in its pit in 1902, at which time it did a little digging, but it had practically stopped taking clay in 1899. From the Gillies pit clay was taken up to December, 1905, and in the farther adjoining pit of Eckerson clay appears to have been taken continuously. From time to time there occurred slides along the banks of these pits, carrying away large quantities of soil and greatly extending the area and circumference of the excavations. Some of these slides had carried down certain public streets in the immediate neighborhood. In 1902 a crack appeared in the bank and crest of the westerly side of the Gillies and Excelsior pits, which ran southerly but irregularly towards the neighborhood of the plaintiff's house. Late at night on January 8, 1906, a great slide happened on the westerly side of the pits, carrying down a large part of the westerly crest of the excavation and extending southerly and easterly to the premises of the plaintiff, and as a result the plaintiff's house, together with a portion of Liberty street adjoining it, fell into the deep hole of the Excelsior Company. At the time of the caving-in of her house the plaintiff, who was in the house at the moment, underwent a harrowing experience and suffered severe personal injuries. In this action she seeks to recover
for these injuries on the ground that the various defendants maintained a nuisance, which in some of its aspects was public and in others private. In this slide of January 8, 1906, others were injured and some were killed at various places affected by the falling in of the banks, and this court has been called upon to consider the rules of law applicable to the facts as presented in each record. In Adlin v. Excelsior Brick Co. (129 A.D. 713) a man who was standing upon a public highway known as Rockland street was carried down and killed by the subsidence of the highway through this very slide. It was held that it was a question for the jury to determine whether the defendant's excavation had removed the lateral support of the highway to the extent of creating a public nuisance, and a judgment dismissing the complaint was reversed and a new trial was ordered. This court then cited as an authority for its holding its earlier decision in Village of Haverstraw v. Eckerson, Nos. 1 & 2 (124 A.D. 18) where it was held that if the excavation destroyed the proper lateral support of a public highway it constituted a public nuisance, and could be enjoined by a suit in equity brought by the village.
Many of the parties defendant in this action have no community of interest in the happening which caused injury to this plaintiff and their participation, if any, in its alleged causes are separate and distinct, and it becomes necessary, therefore, to consider separately as to each defendant the case which the plaintiff attempted to make out by her proofs at the trial. The defendant Eckerson owned and maintained the pit farthest north from the plaintiff's house. If the causation of the slide or cave-in which injured the plaintiff can be traced directly to the pit on the Eckerson property, liability would attach to Eckerson, notwithstanding the distance of that pit from the plaintiff's house. (1 Wood Nuis. § 207, and cases cited.) In the record before us there is no proof tracing any causation for this particular accident to the Eckerson pit, and an attempt to impute liability upon the proofs here would be mere speculative guesswork. Eckerson, however, had acquired ownership of the Gillies pit five days before ...