Cook v. Dean

Full title: ELLEN COOK, as Administratrix, etc., of JOHN COOK, Deceased, Appellant, v…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 1, 1896

11 App. Div. 123 (N.Y. App. Div. 1896)

42 N.Y.S. 1040

Opinion

December Term, 1896.

Charles J. Patterson, for the appellant.

L Laflin Kellogg and Alfred C. Petté, for the respondents.

HATCH, J.:

Plaintiff's intestate met his death by the falling of a temporary drawbridge over Newtown creek, which divides the counties of Kings and Queens. Defendants entered into a contract with the boards of supervisors of the respective counties for the construction of a permanent bridge over said creek, and also for the construction of the temporary structure which fell, the latter to be used by the general public until the new bridge should be completed. The contract was in writing and contained a clause for the construction of the bridge in accordance with the "requirements, terms and conditions of the drawings and plans therefor on file in the office of the clerk of the board of supervisors of Kings county, and specification therefor annexed hereto, and which said drawings, plans and specifications are expressly made and form a part of this agreement, all to be done and performed under the direction and supervision of the engineer" representing the counties. The specifications provided for the erection of a temporary bridge, in such position as to make convenient and safe approaches from both shores to the satisfaction of the engineer. It was further provided that defendants "shall and hereby agrees to keep the above specified structure in good repair during the progress of the work on the main structure, and until directed to remove the same by the engineer." When the contract was signed these specifications were not in fact attached to it, but they were then on file in the office of the clerk of the board of supervisors in the county of Kings, and the defendants recognized their engagement thereunder for they immediately sublet the contract for the erection of the temporary structure, and upon its completion entered upon and assumed the duty of keeping it in repair. So that, whatever legal obligations arise out of these provisions in the contract, defendants have become subject thereto and are bound thereby.

This bridge was a public thoroughfare, kept and maintained for the use of the general public, and was used daily by a large number of persons. The obligation to repair was, therefore, for the benefit of the general public who had an interest therein. The covenant contained in the contract was absolute, and imposed upon the defendants an absolute duty to keep the structure in repair and safe for the purpose for which it was used, so far as proper repairs thereon would make it safe. Under these circumstances defendants became liable for neglect of duty in connection with the obligation assumed, and such neglect created a right of action in favor of a person who suffered injury therefrom as a consequence thereof. ( Robinson v. Chamberlain, 34 N.Y. 389.) This principle is firmly established as the law of this State, and has been recognized and applied in numerous adjudged cases. ( City of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475-486; Little v. Banks, 85 id. 258.)

The basis of responsibility does not rest upon the question of liability of the respective counties as applied to the present case. The obligation to keep and maintain a public bridge at this place had been assumed by the public authorities; it, therefore, became a public thoroughfare, and a public obligation was created to maintain and keep it safe for public use. The covenant upon defendants' part was an assumption of this public duty, and having assumed it, they became bound to perform it at the peril of responding in damages to a person injured by their fault and neglect, no matter what the legal attitude of the respective counties might or might not be. The doctrine of Lawrence v. Fox ( 20 N.Y. 268) has direct application, as the necessary privity of relation is established. ( Little v. Banks, supra.) Making application of this doctrine to this case, we find that plaintiff's proof tended to establish that this bridge had been out of repair and in a dangerous condition for a considerable period of time prior to the accident which produced the death of plaintiff's intestate. This was evidenced by the fact that violent contact had been had and injury sustained from a vessel passing through the draw; that a short time prior to its fall a vessel had attached its hawser to the bridge and forcibly pulled it from its moorings; that it then partially fell down, broke some of the cables which supported it, and was in such a condition as would warrant the jury in inferring that substantial damage was inflicted thereby which had not been properly repaired. The evidence also tended to establish that the bridge would sag downward in the center when two or three persons passed over it, and that the attention of the engineer had been called to this fact prior to the accident. One of the guys which held the "A" frame in place was removed entirely, leaving but two to support it. This caused the draw to tilt to one side when it was opened, and also permitted the same thing when closed, if sufficient weight was applied upon the side of the bridge opposite to that from which the guy was removed. It is true that it was testified that the guy performed no office in support of the bridge when closed, yet the fact that it tilted when opened, and would do so if closed, with weight applied to the opposite side, authorized the inference that such tilting had a tendency to and did weaken the structure, and the absence of the guy contributed to that end. Without calling attention to the evidence in detail, we think that the proof offered by plaintiff clearly entitled her to have the questions whether the bridge was in proper repair, and if not, whether such lack of repair contributed to its fall and to the death of plaintiff's intestate, submitted to the jury.

We have not overlooked the fact that defendants' proof tended to establish that the bridge was in proper condition; that it was repaired and new cables attached after the vessel hauled the bridge from its moorings; that the supports of the bridge had broken squarely off, and that this was due to an unusual and improper strain, and not to any lack of sufficient repair. These and other questions were supported by defendants' proof, were put in issue by plaintiff's case, and became questions for solution by the jury. Bearing upon these questions, it has been held that where a bridge fell, by reason of a load not in excess of what it ought to bear, the fact that it broke is some evidence of lack of proper repair. ( Stack v. Bangs, 6 Lans. 262.) The jury would have been authorized to infer that the cause of this disaster did not arise from any excessive load which the bridge carried at the time it fell. It has also been held that the obligation is imposed upon the parties charged with the duty of making repairs to inform themselves of the condition of the bridge and make the necessary repairs if needed. ( McCarthy v. City of Syracuse, 46 N.Y. 194.) The duty to repair in this case, as we have seen, was absolute, and defendants could not relieve themselves from that duty by asserting that they had not been notified by the engineer that repairs were needed. They were required to exercise a reasonable degree of watchfulness, and if they failed in this, and injury was occasioned thereby, liability attached. Notice of a defect was not necessary to charge them with liability. They were bound to look for it and repair when necessary. Under the law no tribunal except a jury can make answer to the questions which the record presents.

The court may have dismissed the complaint upon the ground that the contract had been altered, by the insertion of "107" days as the time for performance, after the contract was signed, which rendered it invalid. It does not appear who made the change or for what purpose it was made. It defrauded no one, and there is no evidence of any bad faith in connection with it. What the terms of the contract were remained as clear after it was inserted as before. No one attempted to insist upon this clause, and it does not appear that any of the parties thereto expected that anybody would make any claim thereunder. It could have no effect upon the liability of the defendants in what they did; it neither added anything to it or took anything away. The defendants assumed to erect this bridge and take upon themselves the duty of keeping it in repair. If liability attached it was by virtue of these acts, and this change could not be made to affect the present condition in the slightest degree. Plaintiff was entitled to have the issues which his pleading and proof presented passed upon by the jury, and having been denied this right, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.