99 N.Y. 284, Sipple v. State

Citation:99 N.Y. 284
Party Name:JOHN SIPPLE, Respondent, v. THE STATE OF NEW YORK, Appellant.
Case Date:June 09, 1885
Court:New York Court of Appeals

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99 N.Y. 284

JOHN SIPPLE, Respondent,



New York Court of Appeal

June 9, 1885

Argued April 29, 1885.

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D. O'Brien, attorney-general, for appellant. No negligence on the part of the State was shown for which it can be made liable. (O'Brien v. Cantwell, 59 Barb. 497; Nicholson v. Erie R. Co., 41 N.Y. 525; Sherman v. W. T. Co., 62 Barb. 150; Victory v. Baker, 61 N.Y. 356.) Negligence will never be presumed. (Sherman v. W. T. Co., 41 N.Y. 525.) The State is not liable for the negligent acts or conduct

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of the lock-tenders. (Lewis v. State, 96 N.Y. 71; 7 Bacon's Abr. [ed. of 1860], title 'Office and Officer,' 279; Bouv. L. Dict., same title; Sullivan v. Mayor, 53 N.Y. 652; Holly v. Mayor, 59 id. 170; Costello v. Mayor, 63 id. 50; Devlin's Case, 5 Abb. Pr. 281; People v. Conover, 17 N.Y. 67; 3 Greenl. [ 1st ed.] App., No. 2]. The lock-tenders were not in the employ of the State at the time the break occurred, and the State was, therefore, not accountable for their conduct. (Wright v. Wilcox, 19 Wend. 343; Frazier v. Freeman, 43 N.Y. 566; Isaacs v. Third Ave. R. R. Co., 47 id. 122; Mott v. Consumers' Ice Co., 73 id. 542.) If the lock-tenders were negligent in the performance of their duty to the State, the claimant was not entitled to an award because such negligence was not the proximate cause of the damage which he sustained. (Shearm. & Redf. on Neg. 7, § 9; Coy v. U. & S. R. R. Co., 23 Barb. 643; Day v. Crossman, 1 Hun, 570; Crane v. Petrie, 6 Hill, 522; Ins. Co. v. Tweed, 7 Wall. 44; Penn. R. R. Co. v. Kerr, 62 Penn. St. 353; Reiper v. Nichols, 31 Hun, 391.) The refusal of the trial court to find a material fact proved by uncontroverted evidence, or the finding of a material fact wholly without evidence to sustain it, is an error at law, and, upon exception thereto, reviewable in this court. (Mason v. Lord, 40 N.Y. 476; Fellows v. Northrup, 39 id. 117; Draper v. Stouvenel, 38 id. 219; Sheldon v. Sheldon, 51 id. 354.) In a case of negligence where the evidence is equally consistent with the absence as with the existence of negligence, a cause of action has not been made out. (Baulec v. N.Y. & H. R. R. Co., 59 N.Y. 356; 62 Barb. 623; Toomey v. R. R. Co., 3 C. B. [ N. S.] 146; Cotton v. Wood, 8 id. 568.)

Wm. H. Bowman for respondent. The State is liable (Laws 1870, chap. 321, § 1; Laws 1883, chap. 205, § 13.) The lock-tenders were servants of the State, because they were at all times subject to the will and control of the State. (4 El. & Bl. 570; 4 Allen, 138.) The lock-tenders were acting within the scope of their authority. (Limpus v. L. O. Co., 1 Hurlst. & Colt. 526;

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Frazer v. Freeman, 56 Barb. 234.)The State is liable, as it owed a positive duty to the claimant to maintain the water at a proper level. (Att'y-Gen'l v. B. Nav. Co., 35 L. J. Eq. [ N. S.] 619; Shearm. & Redf. on Neg., § 258.) The negligent failure of lock-tenders to perform their duty was chargeable to the State. (Dolan v. D. & H. C. Co., 71 N.Y. 285; Kissinger v. N.Y. & H. R. R. Co., 56 id. 538; Ernot, Ex'r, v. H. R. R. Co., 39 id. 61.)


It must be conceded that the State can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming such liability. (Lewis v. The State, 96 N.Y. 71.) It is claimed by the respondent that such an assumption has been made by section 1, chapter 321, Laws of 1870. This gives authority to the board of claims 'to hear and determine all claims against the State of any and all persons and corporations, for damages alleged to have been sustained by them from the canals, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals. But no award shall be made unless the facts proved shall make out a case, which would create a legal liability against the State were the same established against an individual or corporation.'

It is contended by the attorney-general that this act should be so construed as to exempt the State from any liability occurring through its management of the canals, except that arising from the negligence of some person described by law as an officer of the State. We think such a construction is uncalled for either by the letter or spirit of the statute. Its plain reading makes the negligence of a State officer but one of the alternatives upon which the liability depends. Thus the State assumes liability for damages arising from the use and management of the canals, or from the negligence or conduct of its officers having charge thereof, or from any accident

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'or other matter or thing connected' with them. It is not essential to a recovery under the act that the damages should be caused by the negligence of such an officer; but if the same were occasioned by 'any accident or other matter connected with the canals,' or from 'their use or management,' no matter what the immediate cause may be, its express terms authorize an award, provided under similar circumstances the law would adjudge a liability against an individual or corporation. The act was conceived in the plainest principles of justice, and was intended to afford a substantial and not a delusive remedy to parties who might be injured by the careless and negligent conduct of those who were intrusted by the State with the execution of its work. The canal was a State...

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