
    John Heib, Appellant, v. The Town of Big Flats, Respondent.
    
      Town—injury resulting from the collapse of a highway bridge — determination of the four-tón limit by adding to the weight of an engine its effort to haul a thresher contributory negligence, in failing to inspect the bridge—previous overloading of the bridge by the plaintiff.
    
    In an action against a town to recover damages for injuries sustained by the-plaintiff in consequence of the collapse of a highway bridge while he was. engaged in taking across it a traction engine attached to a- thresher, in which it appears that the town, under section 164 of the Highway Law (Laws of 1890, chap. 568), is not liable for damages resulting from the breaking of a bridge-“by transportation on the same of any vehicle and load together weighing - four tons or over,” and that the engine weighed three and one-half tons and the thresher weighed about one and one-half tons, and that at the time the accident happened the engine alone was upon the bridge, it is incumbent upon, the plaintiff to Show how much was added to the .weight of the engine by reason of the effort to haul the thresher, in order that it may appear that the load, upon the bridge did not exceed four tons.
    The question whether the plaintiff was guilty of contributory negligence in failing to inspect the bridge before attempting to run the engine and thresher . across it should be submitted to tlie-jury.
    If the cause of the accident was the weakening of the bridge, consequent upon the action of the plaintiff in transporting a load of more than four tons across-it on the day before the accident, the plaintiff is not entitled to recover.
    ■ Appeal by the plaintiff, J ohn Heib, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on tlie 9th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 28th day of September, 1900, denying the plaintiff’s motion for a. new trial made upon the minutes.
    
      Sebring & Cheney, for the appellant.
    
      S. S. Taylor, for the respondent.
   Kellogg, J.:

This action was brought to recover damages for injuries to the person of plaintiff, suffered from the falling of a highway bridge. The plaintiff was engaged in running a traction engine attached to-a thresher across this bridge when the stringers in the middle and on one side broke, and- the engine was turned over and fell some five feet onto the ground below, the bridge. The evidence shows that the bridge was twenty-one feet long from abutment to abutment ; was an old bridge built some nine years before this accident, and then built with old stringers. The bridge was a simple, cheap construction, consisting of five stringers of wood, planked over for a roadway fourteen feet, wide and twenty-one feet long. It was a part of a highway very' little used. The evidence presents a fair question of fact whether, under all the circumstances, the commissioners of highways of this town were not negligent and remiss in the discharge of their duties in not inspecting and replacing the 'decayed wooden stringers with something more substantial. So long as. the public was permitted to cross this bridge it had the commissioners’ assurance that it was reasonably safe.

We find in the Highway Law (General Laws, chap. 19 [Laws of 1890, chap. 568], § 154) the following provision :

“§ 154. When town not liable for bridge breaking.— No town shall be liable for any damage resulting to person or property by reason of the breaking of any bridge, by transportation on the .same, of any vehicle and load together weighing four tons or over; but any owner of such vehicle or load, or other person engaged in transporting or driving the same over any bridge shall be liable for all damages resulting therefrom.”

It may, from this provision of the Highway Law, be fairly reasoned in this case that any bridge knowingly maintained by a highway commissioner and kept open for public travel, without notice or warning, which was of strength insufficient to support in transportation across it a vehicle and load weighing less than four tons would b & prima facie negligence.

If it is kept in mind that the purpose of the statute is to fix a -standard of liability by fixing the minimum limit of the strength of :a highway bridge, as it seemingly does, it will be apparent that weight of “vehicle and load” actually upon any bridge is not wholly controlling. In case the “ vehicle and load ” is four tons and •over in weight, but so arranged that a fraction less than four tons Was the maximum weight at all times upon the bridge, and yet in the process of transportation, or the effort expended in moving that 'portion over four tons to get it upon or across the bridge created .a strain upon the bridge above the statutory limit, the effect upon-the bridge would be the same as though the weight itself were by so much increased. It must be, therefore, in every such case a question of proof as to how much, if any, strain is so added by the effort to move that part of the vehicle and load above the statutory limit, and how much, if anything, is. so added to the weight actually upon the bridge. In the case at bar it appears that the span of this bridge was twenty-one feet. It also appears that the engine and equipment which was upon the bridge weighed about three tons and a half. It also appears that it was hauling a separator, weighing .about one and One-half tons, up an incline to get upon the bridge. The length of the separator does not appear. The “ vehicle and load ” here was the engine and separator combined; together they weighed much more than four tons. Less than four tons, however, was actually on the bridge. How much was added to the weight of the engine, by reason of the effort of the engine to haul up the excess of weight permitted, is not and cannot be, on the proof before us, a matter of law.

The question of contributory negligence on the part of plaintiff was, under the proofs in this case, I think, a question for -the jury. Whether a prudent man, under all the circumstances, would have deemed it safe to cross the bridge with this load in the manner in which it was attempted without first inspecting the size and condition of the stringers, must be a question for the jury. Whether crossing the day previous with “ vehicle and load ” in excess of four tons weakened the bridge must also be a question of fact for a jury. If, in fact, four tons or more of weight was put upon the bridge by plaintiff the day before the accident in transporting this traction engine and thresher, and thereby the bridge was so weakened as to be the cause of its breaking down on the day of the accident, then the plaintiff cannot recover.

The judgment should be reversed, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  