seen, and under circumstances which eliminate it from the case on the question of damages. Still, when it is reasonably certain that the defendant has caused injury to the plaintiff, it is the duty of the court to arrive at the amount of damages, although its judgment is an estimate, and certainty is impossible. Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568. The result of our examination of the question is that the total depreciation in rental value since the introduction of the sewers in 1882 may be fairly estimated at $600 per anDum From this should be deducted for domestic purposes, ice, etc., $300, leaving $300 per annum. One-third of this may be regarded as due to causes for which the defendant is not responsible. Upon this basis we find the damages to be at the rate of $200 per annum, which, for the years elapsed since defendant introduced its sewers, gives a total of $2,000 damages against the defendant."

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

J. Keck, (Matthew Hale, of counsel,) for appellant.
Smith & Nellis, (Andrew J. Nellis, of counsel,) for respondent.

PUTNAM, J. The learned referee has written a very satisfactory and exhaustive opinion, on which I think the judgment should be affirmed. On competent and sufficient evidence, he has found that the defendant, in June, 1882, completed a permanent system of sewers and gutters in the streets of the village of Johnstown, through which the sewage of said village was collected and emptied into plaintiff's pond, not only polluting the water, but causing a large deposit of offensive matter therein; that, ever since said period, the flow of said sewage onto plaintiff's premises has continued. Such being the facts of the case, I think the plaintiff was entitled to the judgment awarded of a perpetual injunction, and to at least nominal damages. Noonan v. City of Albany, 79 N. Y. 470; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. Rep. 1030. The only damages allowed by the referee are for the diminution of the storage capacity of plaintiff's pond, caused by the deposit therein of the contents of defendant's sewers, and the destruction of his machinery, and the consequent injury to his business. The referee determined that such deposit depreciated the rental value of plaintiff's premises $200 a year. The depreciation in the rental value of plaintiff's premises, however, was shown on the trial to be attributable to several causes. The pollution of the water, for which no damages were allowed by the referee, the natural surface drainage of the village of Johnstown, the drainage of other mills, the contents of private sewers, privies, etc., together with defendant's sewage, produced such depreciation. There is no evidence showing with any degree of certainty the amount of the deposit in plaintiff's pond caused by defendant's sewers, and the amount produced by other causes, or to what extent the rental value of plaintiff's premises is dimin ished by acts of defendant. As the referee very properly suggests: "His [plaintiff's] damages occasioned by the defendant are difficult of measurement, and, indeed, the evidence does not furnish means of ascertaining them with precision."

The serious question of the case, and one on which I entertain considerable doubt, is whether the evidence was sufficient to justify the finding of the referee as to the amount of plaintiff's damages. It is urged that without any evidence showing the amount of deposit in the pond caused by defendant, and the quantity left there by other sewers, the conclusion of the referee as to the amount of the diminution of the rental value produced by defendant is founded on mere conjecture. It must be admitted that there is some plausibility in this position; but there are well-considered authorities which seem to sustain the view of the learned referee. Drucker v. Railway Co., 106 N. Y. 156, 12 N. E. Rep. 568, was an action brought against the defendant for damages for interfering with plaintiff's easement in a street. The damages allowed was the diminution of rental value of plaintiff's property. dence tended to show that such diminution was caused by defendant's road, and also by a tendency of the business to move “up town." In the opinion the following language is used:

"It is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible is given, the good sense of a jury must provide the answer, and it is no defense that such judgment involves more or less of estimate and opinion, having very little to guide it. That criticism has no force in the mouth of the wrongdoer when all reasonable data have been furnished for consideration."

The same doctrine is held in Tallman v. Railroad Co., (Com. Pl. N. Y.) 2 N. Y. Supp. 130, 131. In Van Steenburgh v. Tobias. 17 Wend. 562, 563, Judge Cowen, holding that a joint action does not lie against the separate owners of dogs by whom the sheep of a third person has been killed, says:

"The difficulty in accurately estimating the damage done by each dog is not an argument of sufficient strength to warrant the injustice of punishing a man who is innocent. The jury must in this, as in most cases of wrong, get at the real damages in the best way they can."

In a similar action (Buddington v. Shearer, 20 Pick. 477--479) it was held:

"There may be some difficulty in ascertaining the quantum of damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by one dog, and what by the other, there would be no difficulty; and, on failure of such proof, each owner might be liable for an equal share of the damage, if it should appear that the dogs were of equal power to do mischief, and there were no circumstances to render it probable that greater damage was done by one dog than by the other."

The same doctrine is held in Auchmuty v. Ham, 1 Denio, 495, and in Partenheimer v. Van Order, 20 Barb. 479.

It follows that in actions like the one we are considering, as in those for personal injuries, where all the evidence bearing on the question of damages, "which, in the nature of the case, is fairly possible" has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or opin

ion.

In this case the evidence given on the trial was voluminous,

and all the facts bearing on the question of damages, as far as possible, seem to have been brought out; and I think, under the authorities cited, the conclusion of the referee was warranted by the evidence, and, therefore, that the judgment should be affirmed. All concur.

THURINGER v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Fourth Department. September 23, 1893.) 1. NEGLIGENCE-DANGEROUS PREMISES-ICE ON SIDEWALK.

In an action against a railroad company for injuries to plaintiff from slipping on ice which had accumulated on the sidewalk from water dripping from the spout of defendant's water tank, it was for the jury to say whether defendant was negligent, and whether its negligence caused or contributed to plaintiff's injury.

2. SAME.

In such case, defendant could not defeat a recovery on the ground that, the obstruction being on the sidewalk, the city only was liable. 3. SAME

CONTRIBUTORY NEGLIGENCE

Whether a woman injured by falling on ice negligently allowed to accumulate on the sidewalk by an adjacent owner was negligent in not discovering the ice is a question for the jury.

4. PERSONAL INJURIES-ACTION BY MARRIED WOMAN-DAMAGES.

A married woman suing for personal injuries cannot recover for loss of time, where there is no proof that her husband has not assisted her, or has agreed that she should have her earnings, though she testifies that her husband has left her, and not lived with her for 12 years, during which time she has worked out and taken in washing, and has had all her earnings. for the maintenance of herself and children, as the husband only, in such case, can sue for such damages.

Appeal from circuit court, Oneida county.

Action by Mary Ann Thuringer against the New York Central & Hudson River Railroad Company for negligence. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

The complaint alleges: "The said defendant wrongfully and unlawfully and negligently permitted and allowed water to flow and escape from the water pipe, tank, and its locomotives, * ** and from the premises of defendant, on the sidewalk of said James street, in the city of Rome, the same being a public street, and wrongfully and unlawfully and negligently permitted the same to remain and to continue to flow and escape onto said sidewalk until a large accumulation of said water on said sidewalk froze, and became icy and slippery, and dangerous to the public and people traveling on said walk and street, and wrongfully and negligently neglected to remove said tank and accumulation of ice caused as aforesaid, after it had knowledge that it was dangerous; * and the

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said plaintiff, on or about January 10, 1892, while walking on said sidewalk, without any cause or fault of hers, slipped and fell, thereby seriously and permanently injuring her, and making her sick and sore, and unable to attend to her business." The answer denied the complaint, and alleged the injury in the complaint "was the result of the carelessness, negligence, and want of proper caution on the part of the plaintiff, and not otherwise."

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.. C. D. Prescott, for appellant.

McMahon & Curtin, for respondent.

HARDIN, P. J. 1. On the 10th of January, 1892, the plaintiff resided in the Hager block, on James street, in the city of Rome, and had occasion to visit Antmann's, south of the railroad. About 9 o'clock, in company with her son, a boy some 14 years old, she started to return to her residence, passing along the sidewalk on the westerly side of James street, towards the defendant's road, near its water tank; and she testifies:

"My both feet went out from under me, and I went down in a heap. I tried to get up, and I couldn't. I fell again, and I discovered ice under my hand, and I looked up, and saw the water spout while I was lying there. My boy came then, and tried to get me up, and I couldn't stand on m feet. As I fell, I struck on my left hip,-sat down on it,—right on my left side. My left side was towards the left side of the sidewalk as I came up. I fell with my whole side down, over on my left elbow. I tried to get the first time on my knees, and couldn't get any further, and I fell down again because I was so sick,-because I felt sick to my stomach, and everything whirled around me. I noticed the water column when I tried to get up the second time."

Frank, her son, who was with her on the occasion when she fell, testifies:

"When she fell, she was about three feet from track No. 1. She was right opposite the spout when she fell. She fell right over on the left side, towards the spout. I noticed the condition of the sidewalk in front of that spout at that time. It was very icy. The ice extended over the whole sidewalk, and was underneath the spout, and around the standard, and it extended all through track No. 1 to the walk over track No. 1."

Other witnesses were called, who testified as to the condition of the sidewalk; testified as to the manner in which the water column was used, and the effect caused by the drip, and that the action the wind carried the water sideways from the mouth of the column at times. Upon the whole evidence relating to the subject, we are of the opinion that it was a question of fact whether the defendant was guilty of negligence, and whether the negligence of the defendant caused or contributed to the injuries which the plaintiff received. At the same point where this accident occurred another injury was caused to a person passing along the sidewalk, which led to an action, and the trial thereof was brought into this court for review; and our opinion delivered in that case is found in 20 N. Y. Supp. 914, in McGoldrick against the defendant. In that case, in the course of the opinion delivered in behalf of the court, it was said: "Whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact. The defendant claims that there is no basis for a recovery, because the obstruction was upon a sidewalk, and the city, therefore, only liable. It has, however, been held that an owner of adjacent premises, who, without authority, interferes with a sidewalk for his private purposes, and fails to restore it to a safe condition, is liable to any one sustaining injury thereby."

Applying the doctrine found in the opinion from which the quotation has been made, we think there was no error, upon the facts be fore the court, in submitting the question of the defendant's negligence to the jury.

2. The trial judge, in dealing with the question of whether the plaintiff was guilty of contributory negligence, said:

"She was walking in a public street,-upon that part of it, the sidewalk, prepared especially for foot passengers; and it is for you to say whether she was guilty of negligence or not in walking along there without looking to see whether there was any danger. * If you find that she was guilty of negligence, and that her negligence contributed to the injury which she sustained, then she cannot recover, even if the defendant was guilty of negligence."

We think the trial judge was warranted by the evidence relating to the question of her freedom from contributory negligence in submitting it to the jury, and that the charge was as favorable as the defendant was entitled to have delivered upon that subject.

3. In the course of the charge upon the subject of damages, the judge said: "You can allow her for her loss of time, for her

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suffering, and for the pain that she has sustained. At the close of the charge the defendant's counsel requested the court "to charge that the plaintiff is not entitled to recover in this action for any loss of time which she applied to her household service or services." In response to that request the court observed: "Of course, that would be so if she was living with her husband. I decline to charge that." The defendant took an exception, and requested the court "to charge that the husband has a right of action against the defendant for all loss of household services occasioned by this accident, if any one is entitled to recover for this accident." In response thereto the court observed, "I decline to charge that, as applicable to this case;" and the defendant took an exception thereto. It appeared in the evidence that the plaintiff was a woman some 56 years of age; that she had had several children; and she testified that she had lived in Rome 23 years, and, also, "My husband is not living with me," and that it was about 12 years since he had lived with her. There was no proof of his death. There was no proof that she had not heard from him during the period of time covered by the separation from him, or where he was, or that he had not assisted her, nor was there any proof that there had been a dissolution of the marriage relation, or an agreement that she should have her earnings separate and independent of any claim by him. She did testify, however, that during the time she had mentioned she had "worked out, and earned money by cleaning and washing. All the earnings I have, I have had for my own support and maintenance since that time. Prior to the 10th day of January, and for a number of years, or since the time my husband left me, I have been working out by the day, and taking in washing." In Fifer v. Railroad Co., 49 N. Y. 56, which was an action by a married woman for injuries sustained, Allen, J., said:

"Her services and earnings belonged to her husband, and for loss of such services, caused by the accident, he may have an action."

In Brooks v. Schwerin, 54 N. Y. 348, it was said:

"The services of the wife in the household still belong to the husband, and, so far as an injury to her disables her from performing such services, the loss is his, and he, not she, can recover therefor."

v.24 N.Y.s.no.12-69