
    The People of the State of New York, Appellant, v. Syracuse Rapid Transit Railway Company, Respondent.
    Fourth Department,
    January 6, 1909.
    State — negligence — injury toy collapse of canal bridge — license allowing use of bridge toy railroad — when State cannot recover from railroad damages paid for its own negligence.
    The duty to keep a bridge over a State canal in safe condition for public travel rests primarily upon the State, and by virtue of the statute the State is liable for injuries resulting from its negligence in that respect.
    Although the State has licensed a street railroad company to lay its tracks over a canal bridge under a contract requiring the licensee to pay a proportion of the cost of maintenance and to he liable for “.all damages that may occur or arise either to the State or to individuals in consequence-of the constructiona and maintenance of said street railway, over and across said canal bridges and crossings,” the State having been compelled to pay for personal injuries received by a passenger on the cars of said railroad owing to the collapse of the bridge, cannot recover the damages so paid from the railroad. This, because the duty of keeping the bridge in proper condition for use rests upon the State irrespective of such license, and the latter should not be construed to mean that the railroad assumed liability for the negligence of the State.
    
      It seems, moreover, that an agreement assuming liability for the State’s negligence would be against public policy.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 31st day of December, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of December, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      William Schuyler Jackson and Theodore E. Hancock, for the appellant.
    Gannon, Spencer & Michell, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover an amount paid by the State upon a claim made by one Carrie E. I. Chaffee for damages for personal injuries resulting from the fall of the bridge over the canal on James street in the city of Syracuse, hi. Y. The claimant was a passenger in one of the railway’s cars, and while crossing the bridge it went down and the car with it into the canal below.

There is no doubt the primary duty to keep the bridge in a safe condition rests upon the State, so far as the public traveling over it is concerned. (Laws of 1894, chap. 338, §§ 23, 50, 51, 52, 53, 111.)

This duty was neglected so that damages resulted to the claimant. Such was the decision of the Court of Claims. The State was, therefore, properly required to pay such damages and the costs of enforcing the same. (Laws of 1894, chap. 338, § 37, as amd. by Laws of 1899, chap. 280.)

The State having paid the claim, now contends that the railway is liable to it for the amount paid by reason of the provisions under which the railway had been constructed and was maintained and operated over the bridge.

The permission was given May 29, 1889, to the Fourth Ward Railway Company. Tinder this permission the tracks were laid across the bridge, and the operation of the railway over the same was begun in 1889. In 1890 this railway company sold all its property rights to the Syracuse Consolidated Street Railway Company, In 1895 one George Sherman purchased all the property and rights of the latter company under mortgage foreclosure sale, and in 1896 conveyed these to this defendant. The street cars of these various companies have been operated during all the years under the written permission so given to the Fourth Ward Railway Company, and were so operated at the time of the accident in question. The permission was given to construct and maintain the railway across the bridge at the expense of the railway upon certain conditions and restrictions, among which were these: That the work should all be done under the direction of the State officials; that the railway should also pay a certain proportion of the cost of maintaining and keeping in repair the roadways on the bridge ; that the permission might at any time be revoked and annulled by the State, and then it was provided in these words: “3rd. Said Fourth Ward Railway Company shall be held liable for, and shall pay all damages that may occur or arise either to the State or to individuals in consequence of the constructions and maintenance of said street railway, over and across said canal bridges and canal crossings.”

“ 5th. An acceptance by said Fourth Ward Railway Company of this permit shall be deemed a covenant for the faithful performance of all the conditions and requirements herein contained.”

It will be observed that by the terms of the provisions no duty was imposed upon the railway company to keep the bridge in a safe condition and strong enough for the uses it was put to from year to year. It had only to maintain its tracks across the bridge at its own expense and to pay a certain proportion of the cost of maintaining the roadways. Nothing more. The duty of keeping the bridge sufficiently safe and strong for the uses to which it was to be put from year to year was imposed upon the State, irrespective of this written permission, and was not affected by the permission, except that the bridge was subjected to this additional use with the express consent of the State. It is said that the bridge in 1889, when the permission was given, was sufficiently strong and safe for the uses to which it was then subjected, and that the burdens imposed upon it since by reason of the enlargement of the railway cars and the loads drawn over the bridge have been greatly increased, and it should be added that the additional burdens thrown on the bridge since that time by other traffic along the street and over the bridge have been proportionately increased also, as the city of Syracuse has grown in population and business prosperity. Other loads than street cars have passed over the bridge of great weight, one at least of twenty tons or thereabouts. All these considerations called upon the State to strengthen the bridge or build a new one, sufficiently strong to bear the additional burdens imposed thereon by public travel which had a legal right to pass along the street and over the bridge. So far as this railway was concerned, the State, by the express terms of the permission, might at any time revoke and annul the permission and require the railway to remove its tracks from the bridge at its own expense. The bridge was an old one, had stood for forty years and upwards, and should have been replaced by the State years before with a new, modern and stronger one adequate to the needs of the locality and its business and the public travel over it. The failure to have a bridge sufficiently safe and strong was the grossest negligence on the part of the State, and it was this negligence which caused the accident in question - and which compelled the State to pay this claim here sought to be recovered from the railway company. In the absence of this permission and of provisions 3 and 5 therein above quoted, there certainly would be no ground whatever upon which to recover in this action. Are the terms of these provisions sufficient to authorize a right to recover ? Was the intention to provide that the railway should be liable for damages suffered solely by reason of the gross negligence of the State — such negligence as caused the accident in question ? It seems to us not'. We do not think it can be fairly said that within these provisions these damages occurred or arose in consequence of the construction or maintenance of the railway over the bridge. Certainly, if it was a question of fact, the jury was justified in finding for the defendant upon the question.

The bridge fell because it had become so weakened from continued use and overloading that it finally collapsed. The jury might as well conclude the overloading of the bridge, and consequent weakening thereof, was from other traffic along the street and over the bridge as from the operation of the railway over the same. They have found that the bridge did not fall in consequence of the operation of the railway over it, and this verdict was authorized by the evidence, was not contrary to or against the weight of the evidence. It is suggested that if the car with its load had not been upon the bridge it would not have fallen. How do we know that ? We must say it fell because it had at last become so weakened that it gave way. It might just as well have fallen under some other weight, from some other load passing over it, by other traffic. Suppose it became so weak that a single light team going over it added the last straw which broke it down, would it be said the damage resulted from the passing of the light team over it ?

These railway cars and other heavy loads had passed over it day after day, and it had stood, but the weakening was going on from excessive use, and finally it gave way. Why charge the damage to the railway because its car happened to he on the bridge when it finally fell ? The real cause, the primary cause of the accident, was the gross negligence of the State.

I do not interpret this written consent so as to enable the State to recover over against the railway company for an accident resulting primarily solely from its, the State’s, gross negligence.

Moreover, I entertain doubt as to the validity of such an agreement if the construction of the State is to be upheld. It would be against public policy to permit the State to make and enforce such an agreement.

I think the verdict of the jury was correct, and should not be disturbed.

All concurred.

Judgment and order affirmed, with costs.  