
    Mary J. White, as Administratrix, etc., of John Watson, Deceased, Appellant, v. The State of New York, Respondent.
    Third Department,
    March 5, 1913.
    State — negligence — death of persons descending stairway of canal bridge — lack of proper railing — proof not establishing contributory negligence — appeal — failure of former Court of Claims to make findings.
    Where the hand rail of the stairway of a footbridge over the State canals, designed to be used by pedestrians while the main bridge was raised, had been removed from between two weeks and a nionth and an independent contractor repairing the bridge under the supervision of the State inspector guarded the staircase only by a plank not over twenty inches in height, it seems, that the State would be liable for the death of a pedestrian who while descending the staircase was crowded by other pedestrians so that he fell over the guard plank.
    In an action in the Court of Claims to recover for a death so caused, held, that a finding that the deceased was guilty of contributory negligence was against the weight of evidence and that a new trial should be granted.
    On an appeal from a judgment of the Court of Claims dismissing such claim the Appellate Division will treat the opinion below in which all concurred as the findings of the court and as stating the ground for denial of relief to the plaintiff, as that court has been disbanded and it is impossible for it to make findings of fact.
    Appeal by the plaintiff, Mary J. White, as administratrix, etc., from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 29th day of July, 1911, dismissing the plaintiff’s claim.
    
      Costello, Burden, Cooney & Walters [Oliver D. Burden of counsel], for the appellant.
    
      Thomas Carmody, Attorney-General [ Wilber W. Chambers of counsel], for the respondent.
   Smith, P. J.:

Upon September 30, 1908, the claimant’s intestate was killed by falling off a footbridge upon North Salina street in the city of Syracuse, this footbridge running over the Oswego canal and the West Shore railroad tracks. This bridge was built by the State under chapter 668 of the Laws of 1906, which provided for a contribution to the expenses thereof both by the city of Syracuse and the West Shore railroad. The question of the liability of the city of Syracuse or the railway company is not here for determination. The claim here is against the State which assumed the task of building this bridge under the aforesaid act.

In the construction- of this bridge was contemplated the repair of a footbridge already - existing which spanned the canal and the railroad.' This bridge was elevated about seven or eight feet from the highway and about eleven or twelve feet from the railroad and the banks of the canal.. It was mainly for use when the street itself was obstructed by boats passing through -the street and the bridge itself was raised and could not be used.: North Salina street is one of the principal streets in Syracuse, and the evidence is to the effect that large numbers passed over this bridge, and that on the day in question the bascule bridge was raised for the purposes of repair, so that all those passing upon foot were compelled to pass over this footbridge. The footbridge was about fifteen feet in width. Upon its side was a hand rail which reached up to about the hip and ordinarily constituted a full protection to those- walking upon the bridge. Formerly this hand rail had extended down the steps upon either side and furnished protection for those descending from the footbridge proper. Upon the day in question the plaintiff’s intestate was passing over the bridge and as he reached the further end of the bridge and was about to descend he was seen to put his hand down as though feeling for the rail, and failing, to find the railing there he lost his balance and fell over upon the heel path of the canal and sustained thei injuries which resulted in his death. The preponderance of evidence would seem to show that there were a number upon this bridge at the time, and just at the time he fell a man was passing him with a bicycle upon his shoulder which naturally would crowd the deceased over to the side of the bridge. This hand rail, guarding these steps, had been removed from two weeks to a month. There was in its place a plank which was sworn to be anywhere from twelve to. twenty inches in height at the point in question. The opinion of the Court of Claims (73 Misc. Rep. 525) states that it was about up to a man’s knees. It would seem quite evident that this plank was an insufficient protection to one passing down these steps in case he were crowded over to the side of the steps, and the condition as it existed was evidently attributable to the negligence of the contractor in charge of the work. This contractor was doing this work under an independent contract, and it is claimed that this act is not the act of the State, and that the' doctrine of respondeat superior does not apply. To this extent the claim is probably true. It would seem, however, that if the State were required to furnish a safe way, the condition having existed for from two weeks to a month, known to the State inspector in charge of the work, the State was itself guilty of such negligence as would create a liability upon its part. (See Brusso v. City of Buffalo, 90 N. Y. 679, and cases cited. See, also, Rexford v. State of New York, 105 N. Y. 229.)

The claimant has been denied the right to recover, however, apparently upon the ground that her intestate was guilty of contributory negligence. There is evidence to the effect that the attention of the intestate was called to some new construction immediately in the vicinity. As stated before, at the time that he fell a man with a bicycle over his shoulder was passing him upon the walk.' He Was thus crowded over to the edge of the walk. He cannot testify as to the situation and as to the care that he has taken, and such witnesses as were there do not seem to have observed accurately what the deceased did, and what care he at that time took to protect himself. If he had been walking along the side of the bridge with a rail on top as his protection he naturally would reach down for the rail to protect him in descending the steps. We are of the opinion that the finding of the Court of Claims that he was guilty of such negligence as would defeat his right to recover was against the weight of evidence, and that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event

The question is raised that this judgment cannot be reviewed for lack of findings. The question has been heretofore raised but not decided by this court.. The court which decided the case has been disbanded and it would be impossible now to procure such findings. I think under such circumstances we may treat the opinion of the court, in which all concurred, as the finding of the court and as stating the ground for the denial of relief to the plaintiff.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event on the ground that the finding of the trial court that the plaintiff’s intestate was guilty of contributory negligence is against the weight of evidence.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event, on the ground that the finding of the trial court that the plaintiff’s intestate was guilty of contributory negligence is against the weight of evidence.  