Under the instructions given, the jury may have found that the defendants did not construct their bridge in a suitable manner, and that the plaintiff's wharf was properly constructed. The instructions denied to the plaintiff the right to make a lawful use of his land except at his own risk, if he would thereby receive injury from the defendants' bridge, although improperly constructed. That they were erroneous in this particular it seems to me cannot admit of doubt, for reasons more fully explained by my brethren, and which need not be repeated. *Page 216
If the defendants properly constructed and maintained their bridge, and if the necessary result of the plaintiff's constructing his wharf was that the damages which did happen to him would have happened, the defendants are not liable, because it must be considered that all that was taken into the account and considered in the original award of damages; and the instructions on this part of the case were therefore correct.
The instructions to the jury in other respects were correct, — just what were called for by the facts appearing in the evidence, and admirably calculated to aid the jury in gaining a clear apprehension of the law applicable to the case. They covered the special instructions requested by the plaintiff, so far as they were called for. But for error in the instructions, as above explained, the verdict must be set aside, and
A new trial granted.