108 N.Y. 205, Splittorf v. State

Citation:108 N.Y. 205
Party Name:CHRISTINA SPLITTORF, as Administratrix, etc., Appellant, v. THE STATE OF NEW YORK, Respondent.
Case Date:January 17, 1888
Court:New York Court of Appeals

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108 N.Y. 205

CHRISTINA SPLITTORF, as Administratrix, etc., Appellant,



New York Court of Appeal

January 17, 1888

Argued December 21, 1887.

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James Lansing for appellant. The claim herein is cognizable by the Board of Claims. (Sipple v. The State, 99 N.Y. 284.) Such cause of action against the state survives the death of the injured party. (Laws of 1847, chap. 450 as amended by Code of Civ. Pro., § 102; Williams on Executors [8 Eng. ed.] 796; Pulver v. Harris, 52 N.Y. 76.) The state was guilty of actionable negligence toward claimant's intestate. (Corby v. Hill, 4 C. B. [ N. S.] 556; Hounsel v. Smith, 7 id. 730; Smith v. London Dock Co., L. R., 3 C. P. 476; Indermaur v. Dammes, 2 id. 311; Barnes v. Ward, 67 E. C. L. 392, 403; Holmes v. N. E. R. R. Co. 4 Exch. 254; Beck v. Carter, 68 N.Y. 292; Crogan v. Scheele, 33 A. L. Jour. 110; B. & O. R. R. Co. v. Rose [Md. Ct. App.] 34 id. 82; Balch v. Smith, 7 Hurlst. & Norm. 740; Scott v. London Dock Co., 3 L. Times [N. S.] 383.) Knowledge of the causes which produce inevitable results is the knowledge of the results. (Darling v. Mayor, etc., 18 Hun, 340.) But if it shall be assumed that the claimant's intestate occupied the position of a bare licensee upon the premises of the defendant the state was liable for his injury. (Barry v. N.Y. C. & H. R. R. R. Co., 92 N.Y. 289; Byrne v. N.Y. C. & H. R. R. R. Co., 104 id. 362; Hounsel v. Smith, supra; Southcote v. Stanley, 1 H. &. N. 247; Seymour v. Maddox, 16 Q. B. 326; White v. France, L. R. 2 C. P. D. 308; Pickard v. Smith, 10 C. B. [ N. S.] 470; Corby v. Hill, supra; Corogan v. Union Sugar Refinery, 98 Mass. 577.) A person has a right to assume that all parts of a street or way are reasonably safe, and that he may cross at any point that suits his convenience without being liable to the imputation

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of negligence. (Brusso v. City of Buffalo, 90 N.Y. 699.)It cannot be considered to be contributory negligence if the plaintiff has merely not anticipated the defendant's negligence, for the plaintiff has a right to presume that the defendant is going to act with ordinary care until he has some notice to the contrary. (Smith on Negligence, m. p. 235; Vennal v. Garner, 1 Cr. & M. 21; Gee v. Met. Ry. Co., L. R., 82 Q. B. 61; Johnson v. Hudson River R. R. Co., 20 N.Y. 65.)

Charles F. Tabor for respondent. There was no negligence upon the part of the state. (Mayor, etc., v. R. R. Co., 2 Keyes, 478; Weed v. Village of Ballston Spa, 76 N.Y. 336; Houghkirk v. Pres't, etc., 92 id. 227; Hart v. Hudson River Bridge Co., 84 id. 62.) As bearing upon the question of defendant's negligence, the deceased had no business on the bridge at all. (Burbank v. Fay, 65 N.Y. 57; Nicholson v. Erie R. Co., 41 id. 525; Hounsel v. Smith, 97 Eng. C. L. 729; Beck v. Carter, 68 N.Y. 292; Murphy v. City of Brooklyn, 98 id. 642; Sutton v. N.Y. C. & H. R. R. R. Co., 66 id. 248.) There was neither allurement, enticement nor invitation upon the part of the state, alleged in the claim or proved on the trial, to the intestate or others to make this bridge a highway. (Conorose v. Walker, 30 Hun, 600; Lawrence v. Crown Point Iron Co., 101 N.Y. 391; Pittsburgh R. R. Co. v. Brigham, 29 Ohio St. 364; Parker v. Portland Publishing Co., 69 Me. 173; Cahill v. Layton, 57 Wis, 600; Hargreave v. Deacon, 25 Mich. 11; Murphy v. City of Brooklyn, 98 N.Y. 642; Victory v. Baker, 67 id. 366.) The burden of proof was upon the claimant to show the absence of contributory negligence. (Hubbell v. City of Yonkers, 104 N.Y. 434; Reynolds v. N.Y. C. & H. R. R. R. Co., 58 id. 248; Hale v. Smith, 78 id. 483; Cahill v. Hilton, 27 N.Y. Weekly Dig. 235; Hays v. Forty-second St. R. R. Co., 97 id. 259; Cordell v. N.Y. C. & H. R. R. R. Co., 75 id. 330; Becht v. Corbin, 92 id. 658; Monk v. Town of New Utrecht, 104 id. 561.) The proofs in this case all tend to show that the deceased must have been familiar with this bridge and its surroundings.

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The burden was upon the claimant to show, either by direct evidence or the drift of surrounding circumstances, that he approached it with due care and caution. (Tallman v. Syracuse B. & N. R. R. Co., 98 N.Y. 202; Du Bois v. City of Kingston, 102 id. 223.)The fact that the state, on the day following the accident, replaced the iron pin or bar which had been previously broken, as found by the board of claims, does not establish negligence, and the evidence given to establish such replacement was not competent or proper upon any question of negligence. (Morell v. Peck, 88 N.Y. 398.) The cause of action did not survive the death of claimant as against the state, and, therefore, a recovery cannot be had. (Green v. H. R. R. R. Co., 2 Keyes, 294; DeBevoise v. N.Y. L. E. & W. R. R. Co,. 98 N.Y. 377; Lewis v. State, 96 id. 71.) In the construction of statutes declaring or effecting rights of interests, they should not be interpreted so as to embrace the sovereign power unless that idea be distinctly expressed or result by necessary implication. (Sedgwick on Construction of Statutory and Constitutional Power 337; Joslyn v. Sloan, 28 Miss. 753; King v. Allen, 15 East, 333; U.S. v. Green, 4 Mason, 427; U.S. v. Thompson, 19 Alb. Law Jour. 174; People v. Gilbert, 18 Johns. 227; People v. Rossiter, 4 Cow. 148; City of Rochester v. Town of Rush, 80 N.Y. 272; Savings Bank v. U. S., 19...

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