
    Savilla F. Smith, as Administratrix, etc., of Christopher Smith, Deceased, Appellant, v. The State of New York, Respondent.
    Third Department,
    June 27, 1912.
    Uegligence— injury by fall from approach to bridge maintained by State — evidence — contributory negligence, where no eye-witnesses.
    Plaintiff’s intestate while walking at night over the unguarded approach to a bridge maintained by the State fell to the base of the abutment and was injured and subsequently died. Evidence examined,, and held, that the State was guilty of negligence in the construction and maintenance of the bridge and its approaches;
    That, there being no eye-witnesses of the immediate accident, the evidence of decedent’s freedom from contributory negligence was sufficient. Smith, P. J., and Lyon, J., dissented.
    Appeal by the Claimant, Savilla F. Smith, as administratrix, etc., from a judgment of the Court of Claims of the State of New York, entered in the office óf the clerk of said court on the 16th day of October, 1911, dismissing the appellant’s claim.
    
      John F. Murray and William H. Murray [John H. McMahon of counsel], for the appellant.
    
      Thomas Carmody, Attorney-General [Wilber W. Chambers, Deputy Attorney-General, Of counsel], for the respondent.
   Betts, J.:

The Brie canal runs north and south in the city of Watervliet. Seventh street between Second and Third avenues crosses over this canal by a bridge and the approaches thereto. The bridge is about fifteen feet in width. The highway approaching the bridge from the west is wider than the bridge. Underneath the west end of the bridge is the towpath of the canal. A board fence on the north side of the western approach to the ■ bridge approaches to within about four feet and seven inches of the railing on the north side of the bridge where there is an open unguarded space. There is a stone abutment laid up to nearly level with the higher part of the highway or approach to the bridge. Some years ago this abutment with concrete coping on the top was some little higher than the adjacent part of the highway but it was found that the bridge was too low, interfering with loads of baled hay on canal boats so the bridge was raised to adapt it to these conditions and the approach was filled in with dirt a little higher than the concrete coping or abutment. The abutment or coping was not raised. This left a descent from part of the approach to the bridge from the north to this concrete coping on . the abutment. This coping was something over nine feet above the towpath at the bridge. There is no sidewalk upon either side of the approach to the bridge. Pedestrians and horses used the entire width of the approach. The defendant built and maintains the bridge and its approaches.

Upon the night of the 4th of June, 1910, plaintiff’s intestate, "Christopher Smith, was seen coming up the avenue on the westerly side of the approach and turning into Seventh street on the north side of that street and going towards the bridge. This was about ten or half-past ten o’clock at night. There was no light upon the bridge. Mr. Smith was seen by at least two persons traveling slowly in a natural way towards the east towards the bridge. There was a street lamp in Third avenue, which was burning very dimly apparently, simply a red spark as it was described. Some light was also furnished from a store window. The witnesses lost sight of Smith when he was apparently twenty feet more or less west of the bridge and on the north side of the approach, going towards the bridge and only a few feet from this unprotected abutment, between the fence and the west side of the north framework of the bridge.

Within about eight minutes after the last witness saw him this witness heard that there was an accident and going around to the south side of and under the bridge he found that Mr. Smith had been carried by some persons, who had previously found him, from the north side at the bottom of the abutment to the south side of the bridge on the towpath and that his leg was broken-and that he was seriously hurt. To the persons whom Smith had summoned for help he said that he could not stand because his leg was broken. ISTo one discovered or testified to any evidence of drinking or improper conduct • on Smith’s part. Smith lived near this place and was accustomed to crossing this bridge for many years. He was taken to the hospital. -As a result of this injury Smith died on June . eleventh of blood poisoning.

The claimant proved substantially these facts and rested.

The court found (as conclusions of law):

“ 1. The State was guilty of negligence in the construction and maintenance of the bridge and its approaches.
“ 2. Claimant has failed to show that the decedent was free from contributory negligence.
“ 3. The claim should be dismissed.”

From the dismissal of the claim entered upon these findings the claimant appeals.'

I agree with the court that the- approach of the bridge was negligently maintained by the defendant. I do not agree with its other conclusions of law.

The rule as to claims where the injury resulted in death with no eye-witnesses of the immediate accident is relaxed as to what must be proven by a claimant to show freedom'from contributory negligence on the part of the deceased, although some proof of freedom from contributory negligence must be shown. (Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86.) Certainly the claimant could not without eye-witnesses show anything more natural, more careful and prudent as to the. conduct on the part of Christopher Smith on his approach to "this bridge than was shown. He was in no apparent haste and no reason was shown for haste. He was going home in a natural manner. He was. found in a very few minutes (less than eight) from the time that he was last seen, as lias been shown. He was seen about twenty feet from the bridge. Almost directly thereafter he was calling for help, lying with a broken leg by the towpath directly under this place where there was no fence or barrier to prevent his falling. He must have fallen down that place.

There was a sort of path that led near the concrete coping on the top of the abutment, and it is very evident that he must have fallen off that place. He could not well have fallen from the bridge on account of the railings. If he had got only a short distance on the bridge he would have fallen into the canal instead of on the towpath. He could not have moved himself from any other place on account of his broken leg, which did not permit him to even stand up.

The claimant had evidently shown everything that it was possible to show in the absence of an eye-witness, and I think she had shown sufficient to warrant a finding that the plaintiff’s" intestate was free from contributory negligence under the rule as laid down, where a person injured died prior to trial with no actual witnesses at the precise time of the accident.

It follows that the judgment of the Court of Claims should be reversed and a new trial granted to claimant, with costs to abide the event.

All concurred, except Smith, P. J., and Lvoisr, J., dissenting.

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