MARY SHAW, Respondent, v. THE CENTRAL PAC. R. R. CO., Appellant, 1 Cal. Unrep. 503

SANDERSON, J. This is an action for damages done to the real estate of plaintiff by the defendant, in constructing its road upon a part of it, and by grading a street opposite to the other part. In respect to the injury or damage done by the construction of the defendant’s road, the defendant justified under the provisions of the railroad law in relation to the condemnation of private property for railroad purposes. As to the damage done by grading of the street, the defendant denied that it either did, or caused to be done, the work, by reason of which the damage was caused.

The first defense was fully sustained by the testimony, and the court so instructed the jury. Upon the other defense, however, the jury found a verdict against the defendant. A motion for a new trial was made, but denied. One of the grounds of the motion was, that the verdict was contrary to the evidence. After a careful examination of all the testimony we are of the opinion that a new trial should have been granted upon that ground. The case shows beyond all controversy that the grading of the street was done by one ChalTes Crocker, under a contract with the city of Sacramento.

The only evidence offered by the plaintiff, tending to connect the defendant with the grading of the street, was to the effect that the work was done by the same persons and teams by which the railroad, which passes along the side of the street, was graded. But this is explained by the fact that the railroad and the street were both graded by Crocker— the former under a contract with the defendant, the latter under a contract with the city of Sacramento.

Upon the testimony we think it clear that the defendant is, in no respect, responsible for any damage which the plaintiff may have sustained, if she has sustained any for which she has a remedy by action — a point we do not decide. Judgment and order reversed, and new trial granted. We concur: Sprague, J.; Crockett, J.; Sawyer, C. J.; Rhodes, J.