Splittorf v. State

• Citation: 15 N.E. 322,108 N.Y. 205
• Parties: SPLITTORF v. STATE.
• Decision Date: 17 January 1888
• Court: New York Court of Appeals

108 N.Y. 205

15 N.E. 322

SPLITTORF

v.STATE.

Court of Appeals of New York.

January 17, 1888.

Appeal from board of claims.

Claim against the state by Christina Splittorf for death of her intestate, alleged to have been occasioned by the negligent management of a swing-bridge. The claim was dismissed, and claimant appealed.

James Lansing, for appellant.

Charles F. Tabor, Dep. Atty. Gen., for the State.

RUGER, C. J.

The plaintiff's intestate was drowned at West Troy by walking off the tow-path of a side cut running to the Hudson river from the Eriecanal, and falling into a channel connecting the canal with the Mohawk basin, an adjunct thereof. At the place of the accident the tow-paths on either side of the channel were connected with each other by a swing-bridge, built by the state for the purpose of affording a safe passage over the channel for teams and horses, employes, drivers, and persons having occasion to use it in the prosecution of the business of navigating the canal. This bridge was very frequently required to be swung open to afford passage to and from the basin by boats, scows, and other craft, and the time consumed in such passages varied from five minutes to one-half an hour. The tow-paths and the bridge were built entirely upon the land of the state, and formed no part of any public street or highway. The title to such land was acquired by the state for the exclusive purpose of being used in connection with the navigation of the canals, and for no other purpose whatever. A public street, known as ‘Union Street,’ in the village of West Troy, ran along by the side of the tow-path, and terminated near the bridge or basin. No public highway existed on the other side between the channel and the Hudson river. The bridge was a wooden structure about 60 feet long and 16 feet wide, with a narrow walk and railing extending along the north side, next to the basin, and was operated by hand-power by means of a lever which was moved by one person with great difficulty. It was situated about 100 feet east of the lock which connected the river with the side cut, and afforded a passage-way for employes at the lock to and from West Troy. A ferry company had for some years run ferry-boats across the Hudson river between West Troy and the city of Troy, and used a landing on the premises of the state in West Troy, some 500 feet to the west of the bridge described. It did not appear that it had ever received permission from the state to so use its lands. Persons using this ferry from the northern part of West Troy had, for some years, been accustomed to pass over the bridge, when it was in position, in going to and crossing from the ferry, and it did not appear that they had ever been obstructed by the state in so doing, except that in the years 1878 and 1879 a line of posts and chains had been erected by the state separating Union street from the tow-path, and running down near the bridge in such a manner as effectually to prevent teams from passing from the street upon the bridge. This obstruction was, after it had existed two or three years, substantially broken down and destroyed by strangers, and after that time teams as well as foot-passengers were accustomed to pass over the bridge in going and coming from the ferry. A year or two before the accident, the ferry company constructed an elevated foot-bridge over this channel, for the accommodation of persons using the ferry. It had also constructed a plank sidewalk running from the ferry landing on the west to the foot-bridge over the channel.

The evidence tended to show that on the night of the accident the tow-path bridge had been pushed out of its place about two-thirds of its width by the pressure of a passing canal-boat, which had been thrown against it by the force of the current running from the canal into the basin. This left only about four feet in width of the bridge connected with the tow-path, and affording a passage-way across the channel. On the evening of October 11, 1885, at about half-past 7 o'clock, the intestate, with a companion, left a saloon in West Troy, where they had been drinking together, for the purpose of taking the ferry for Troy. They proceeded down Union street, side by side, until they reached the bridge, when one of them passed safely upon it, but the other walked from the abutment into the channel, and was drowned. Although the night was described as being quite dark, the evidence tended to show that there was a lighted kerosene lamp on the bridge, and five or six other lighted lamps, both gas and kerosene, within from 50 to 150 feet from the bridge. It appeared that both the deceased and his companion had been old residents of Troy, had frequently crossed this bridge, and were acquainted with the ferry and its approaches. The evidence also tended to show that at one time the state was accustomed to fasten this bridge at night with a chain and pin, which had become broken, and for over a year such fastening had not been in use. A person was employed by the state to tend the bridge during the day, but it was his custom to leave work every night at 6 o'clock, and from that time until morning no one had ever been in attendance at the bridge. It was also shown that the bridge was not only frequently open to permit the passage of boats through the channel, but that it was quite common to have it pened by the pressure of boats drawn into the channel by the current running in that direction, or from other causes. When this occurred in the night-time there was no one who was employed or assumed to perform the duty of swinging the bridge back to its place. The plaintiff claims that the state, having for a long time permitted the public, without objection, to use the bridge in going to and from the ferry, was guilty of negligence in not securing the bridge at night so that it could not be displaced by passing boats, or other causes. The board of claims dismissed the claim for damages upon findings of fact, holding- First, that the deceased was guilty of contributory negligence in producing the accident; and, second, that the state owed no duty to the public to keep the bridge in repair, and that it was not guilty of negligence in omitting to keep it securely fastened during the night. As we have no power to review a finding of fact made by the board of claims, it follows that, if there is any evidence to support either of the findings, we must affirm the award appealed from. Section 10, c. 205, Laws 1883.

It is well settled that no action or claim on behalf of a citizen can be maintained against the state for injuries occasioned by the negligence or misfeasance of its agents, except where it has by voluntary legislative enactment assumed such liability. Lewis v. State, 96 N. Y. 71. It is claimed by the appellant that such liability has been assumed by the state by virtue of chapter 321, Laws 1870, and we are of the opinion that the claim is well founded. Sipple v. State, 99 N. Y. 284, 1 N. E. Rep. 892, 3 N. E. Rep. 657. By that act claims against the state for injuries received by any person or corporation for damages alleged to have been sustained by them from the canals of the state, or from their use or management, or arising or resulting from the negligence or conduct of any officer of the state having charge thereof, are authorized to be heard and determined by the board of canal appraisers, but no award shall be made unless the facts proved would establish a legal liability against an individual or corporation in a court of justice. The plain implication from this language is that it was intended to give the same remedy against the state for the injuries referred to which then existed...