Fisher v. Village of Cambridge

• Decision Date: 12 April 1892
• Citation: 133 N.Y. 527,30 N.E. 663
• Parties: FISHER v. VILLAGE OF CAMBRIDGE.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 527

30 N.E. 663

FISHER

v.VILLAGE OF CAMBRIDGE.

Court of Appeals of New York.

April 12, 1892.

Appeal from supreme court, general term, third department.

Action by Warren D. Fisher against the village of Cambridge to recover damages for accident by reason of negligent and improper construction of foot-bridges. From a judgment of the general term affirming a nonsuit, plaintiff appeals. Reversed.

Charles M. Davison, for appellant.

Westfall & Whitcomb, (D. M. Westfall, of counsel,) for respondent.

PECKHAM, J.

Prior to the passage of the act incorporating defendant there had been a bridge spanning the creek which crosses Main street at nearly right angles. Main street runs about east and west. This bridge was erected and kept in repair at the expense and by the authorities of the town within the limits of which the village was situated. The bridge was, in effect, a continuation of Main street. In 1866, the defendant was incorporated as a village, and its trustees were made highway commissioners, with general power over sidewalks, roads, and foot-bridges, but not over highway bridges. Acting under their authority, the trustees built what is termed a ‘foot-bridge’ over the same creek. They built it by constructing on each side of this highway bridge another bridge, and each of these bridges which they thus built was about 12 or 13 feet wide, and almost the same span as the original bridge, which was about 28 feet wide. The space covered by the original highway bridge and by these side bridges was thus about 52 or 54 feet, and was, in effect, of the whole width of Main street, including sidewalks. There was in this way added to the original bridge 13 feet on each side. It is claimed on the part of the village that this addition was plainly a foot-bridge intended solely for the use of foot-passengers, and so known to be by the plaintiff. The defendant further contends that it had no power to build any other than a foot-bridge, and that it was not guilty of negligence in building a foot-bridge strong enough only for foot-passengers. Also, that plaintiff was guilty of negligence which contributed to the injury by driving unnecessarily upon the foot-bridge when he was fully aware of its character. The creek which was spanned by the bridge had a course of about north and south, while the closely settled part of the village lay on the east side of the bridge. There was evidence in the case tending to show the following facts: Main street had no curb at either side. Instead of a paved gutter, there was, on the south side of the street, and north of the south sidewalk, a sort of gutter-way, which was a continuation of the street or road. The road rounded gradually, being higher in the center, and the gutter was simply the edge of the road as it met the plane of the sidewalk on the south, and there was no abrupt breaking away. It was perfectly easy for teams to drive across it one way or the other. Both of these foot-bridges, as has been said, joined, and were built up against and substantially formed a part of the old highway bridge. The south curb line of Main street, if extended across the bridge, would take in about four feet of the north end of the foot-bridge, or, in other words, the foot-bridge projected into the street line about that distance. The balance of the foot-bridge was a continuation of the line of the south sidewalk. The line of demarkation between the so-called ‘foot-bridge’ and the highway bridge was not distinct. The highway bridge was higher by the thickness of one plank (from one to three inches) than was the foot-bridge. There was nothing else to show where one bridge ended and the other commenced. The general appearance of the whole bridge was that it was sale for general use, and for driving with whatever load was necessary. The part the plaintiff drove on was level, or nearly so, with the old bridge. There were plank on both bridges, and nothing on them but dust and dirt. There was nothing to show where the foot-bridge commenced and the road-bridge ended, for the line of the difference in height between the two was within the lines of the street. The plaintiff did not know that one part was a foot-bridge only, and the other part a road-bridge, although he knew that the part designated on the trial as a foot-bridge was the only place that pedestrians usually crossed, and that it was built for that purpose,-that is, of furnishing pedestriansaplace to cross; but both bridges were on a level, and he had never heard that one part of the bridge was stronger than the other part, and from appearances one was just as sale to drive on as the other. He did know that one part of the bridge was under the supervision of one set of men and the other under the supervision of another set of men. He knew that by seeing different men working on the bridge. During the time plaintiff lived in Cambridge (a period of some years) he had seen other people frequently drive over the foot-bridge part, and it was plain to be seen teams had so driven over it. Tracks of the wagons, marks of the horses, and their droppings could be there seen on the planks. These tracks and marks were plain to be seen on the planks at or very near the point where plaintiff went on the bridge; and it was plain that teams had been continually driving over that part.

Upon this evidence we think a case would have been made for the jury if plaintiff had driven along the highway, and entered upon the bridge, and had been injured by the falling of the foot-bridge part consequent upon his driving upon that portion. It would be a question for the jury whether the defendant were not guilty of negligence in building its foot-bridge so near as in appearance to make substantially an addition to and a part of the old highway bridge, without taking precautions to build it strong enough to bear the loads which persons...