Thompson v. Town of Bath 142 A.D. 331

Reuse, J.:

The action is to recover damages for personal injuries resulting from the faulty construction of a highway bridge as the plaintiff contends and as the jury found.

The plaintiff was hurt in this way: He was leading a blindfolded cow along the highway. When about the middle of the bridge in *332question the cow attempted to turn around and go back or get off the bridge at the side. The plaintiff was at her left side holding in one hand the rope by which.he was leading or driving her and in the other a switch with which he was urging her -to go forward. She turned to the right (the upstream side of the bridge) at a point beyond the outside stringer. The plank projected about three feet beyond the stringer, and the end of the plank upon which she stepped went down, the other end up, the cow fell into the creek and the .man fell into the hole made by the displacement of that and other plank. He saved himself from going into the creek, but his arm was dislocated, the bone fractured at or near the elbow, and otherwise injured.

It is not clear, and perhaps not vei'y important, whethér he was hurt by the plank which flew up or by the fall. That he was seriously injured-is beyond dispute, and the amount of the verdict is not questioned. .

The bridge was made of millrun plank, three inches thick, five and a half to twelve inches wide, from sixteen to eighteen feet long, laid across five stringers-, eithér end of the stringers resting upon log abutments. The distance between the outside of the upstream stringer and the outside of the downstream.stringer was about ten and a half feet, but the plank was laid somewhat diagonally, so that the distance from the outside bearing surface of the plank at .one side of the bridge to the outside bearing surface at the other was about eleven and a half feet, the plank projecting on each side beyond the outside of the stringer.

The bridge was not level, the upstream side being slightly lower than the downstream side, and the plank being laid loosely upon* the stringers and warped, their tendency was to slip toward the lower side. Nothing was placed upon the ends to hold them down; they were not nailed or secured in any -way; neither were there any barriers on the side of the bridge. The span of the-bridge was about twenty feet, and it was about three to five feet above the creek.

One of the witnesses, the same day of the accident (August 21, 1907), before it occurred, drove through the creek and noticed that some of the plank had worked upstream. Other's, had noticed the same condition some time before the accident and had replaced the *333plank. One of the witnesses says that the latter part of July or first of August one of the plank had moved so that one of the stringers was exposed and he replaced the plank. But it is unnecessary to enter into a more minute or detailed description of the bridge. I think the evidence 'shows that it was not a proper bridge. A jury of the county in which it' is located by their verdict have condemned it, and I do not understand that counsel for appellant urges that that finding is not warranted by the evidence.

It is contended, however, that the cow and not the condition of the bridge was the proximate cause of the accident. I think the evidence justifies the conclusion that but for the faulty condition of the bridge, and particularly the loose plank projecting beyond the outside stringer, the casualty would not have happened; and that is the test in determining the question as to whether that was an efficient concurring cause for which the defendant is liable. (Sweet v. Perkins, 196 N.Y. 482, 485.) In Wallace v. Town of New Albion (121 App. Div. 66; affd., 192 N.Y. 544) the town was held liable where a horse became frightened, backed off the bridge and over an unguarded embankment at the approach to the bridge. So in Ivory v. Town of Deerpark (116 N.Y. 476), where the casualty was the result of an unmanageable team and a defective highway, it was said : “ While, in case the horses were beyond the control of the plaintiff, such fact may have been a proximate cause of the injury, it did not, provided the plaintiff was free from fault, relieve the defendant from liability if the danger and the injury of the plaintiff, as the consequence, resulted from the negligence of the highway commissioner. In that case there would be two proximate causes of the accident, and the responsibility would rest with the defendant if one of such causes was attributable to the fault of the commissioners. (Ring v. City of Cohoes, 77 N. Y. 83.)” Wood v. Town of Gilboa (76 Hun, 175 ; affd., 146 N.Y. 383.)" is a. similar case, and the same doctrine is applied. 1 think the question of proximate cause was one of fact and was properly decided by the jury.

It is also contended on defendant’s behalf that the plaintiff himself was at fault in attempting to lead or drive the cow across the bridge,! She was blindfolded, and it is said that she was unruly.

*334She was accustomed to being blindfolded; that had been done • to prevent her jumping fences. It is possible that the man should have taken off the blindfold or not have attempted to get her over the bridge at all, but the jury has found that he was not lacking in care and prudence in that regard, and I think the evidene sustains that finding.

Certain exceptions to rulings upon questions of evidence taken by the defendant are urged as grounds of reversal by defendant’s counsel. One is to excluding evidence as to the way the cow led and conducted herself after the accident, and the other is to receiving evidence offered by the plaintiff showing that upon many .bridges of this kind, spikes or weights, of" something is used along the edge to hold.the plank down. I think the exceptions are not well taken, and in any event they do not furnish grounds for granting a new trial.

The judgment and order should be affirmed,, with costs.

All concurred, except McLennan, P. J., and Williams, J., who dissented, in an opinion by McLennan, P. J.

McLennan, P. J. (dissenting):

So far as is disclosed by the evidence, the bridge in question was absolutely safe for ordinary travel. For a space of ten or twelve feet in the center of the bridge the planks were in order, and it was in a perfectly safe condition for the use of the traveling public. It does not seem to me that the defendant or its agents, in the exercise of ordinary care and prudence, were required to guard against the possibility that a cow led by a person would step upon the" end" of a plank outside of the ordinary traveled highway across such bridge and cause the accident which in this case occurred. Concededly, the bridge was safe for the use of the ordinary travel across the same. My notion is that the defendant was not guilty of negligence because it failed to make such bridge safe for the passage of unruly or blindfolded cows. An affirmance of this judgment involves the proposition that a town is liable because of any defect existing in a bridge for its entire width, notwithstanding that the usually traveled way," of ample width, is in perfect order and condition.

I venture to suggest that there is hardly a bridge in the country

*335districts of this State where at either end- the planking is not more or less uneven, and where all the planks do not come out in such manner as to be supported by the stringers.

Where a town provides a. driveway across such bridge of sufficient width to accommodate the public in its ordinary use of such bridge, it, such town, discharges its full duty and it is not required to construct and maintain a bridge with a tight floor extending across its entire width so as to prevent from accident an unruly horse or cow in case it suddenly goes outside of the usually traveled way across such bridge.

I think that the respondent failed to establish actionable negligence against the defendant, and, therefore, I vote for a reversal of the judgment.

Williams, J., concurred.

Judgment and order affirmed, with costs.