Gibney v. State

• Citation: 33 N.E. 142,137 N.Y. 1
• Parties: GIBNEY v. STATE.
• Decision Date: 17 January 1893
• Court: New York Court of Appeals

137 N.Y. 1

33 N.E. 142

GIBNEY

v.STATE.

Court of Appeals of New York.

Jan. 17, 1893.

Appeal from board of claims.

Action by Nellie C. Gibney, as administratrix of the goods, chattels, and credits of John F. Gibney, deceased, claimant, against the state of New York. From a finding of the board of claims awarding $5,000 damages to plaintiff by reason of the death of her husband, John F. Gibney, caused by the negligence of defendant, defendant appeals. Affirmed.

S. W. Rosendale, Atty. Gen., for the State.

Edwin C. Angle, (John A. De Remer, of counsel,) for respondent.

ANDREWS, C. J.

We have decided, on the appeal brought from the award of damages for the death of the infant son of the plaintiff, that the evidence authorized a finding of negligence on the part of the state authorities in permitting the opening in the bridge, through which the boy fell into the canal, to remain unguarded, and also the further finding that there was no contributory negligence on the part of the parents of the child, and we therefore affirmed the award. The present appeal is from an award made for damages sustained by the widow and next of kin, arising from the drowning of the plaintiff's husband, and the father of the child, in an attempt to rescue the child from the canal, into which the child had fallen. The material facts are undisputed. The plaintiff, with her husband and child, in an evening in August, while crossing the bridge, met an acquaintance, and the parents stopped to talk with him. The child remained within a few feet of them, and suddenly fell through the opening in the railing of the bridge into the canal below. The father, as soon as he discovered that the boy was gone, plunged into the canal to recover the child, and both father and son were drowned.

It is contended by the attorney general that the negligence of the state in permitting the bridge to remain in an unsafe condition, while it may have been the cause of the death of the boy, cannot be regarded as the cause of the death of the father, although it occurred in an attempt to save the life of the child. It is doubtless true that except for the peril of the child, occasioned by his falling through the bridge into the canal, there would have been no connection between the negligence of the state and the drowning of the father. But the peril to which the child was exposed was, as has been found, the result of the negligence of the state, and the peril to which the father exposed himself was the natural consequence of the situation. It would have been in contradiction of the most common facts in human experience if the father had not plunged into the canal to save his child. But while the immediate cause of the peril to which the father exposed...