
    Jacob Desure, as Administrator, etc., of Hymon Desure, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company and The City of New York, Appellants.
    
      Negligence—drowning of a boy, partially blind, who being on a dram when it was being opened walked into the Harlem, river — liability of a railroad company owning the bridge and of the city of New York charged with the care of its footway — contributory negligence.
    
    In an action brought against the New York Central and Hudson River Railroad Company and the city of New York to recover damages resulting from the death of the plaintiff’s intestate, it appeared that. the' predecessor of the defendant railroad company, with the permission of the city of New York, constructed a drawbridge over the Harlem river at One Hundred and Fifty-fifth street; that the bridge contained ways for foot passengers and that, by agreement between the city of New York and the predecessor of the defendant railroad company, the care and maintenance of the footways was committed to the city of New York, which “assume all responsibility and risk of damage and personal injury to individuals while on said footways or approaches, and agree to light the same at its expense, and police the same, and maintain the necessary gates and gatemen, so that the opening and closing of the draw may be without unnecessary risk to foot passengers, and will indemnify and save harmless the party of the first part, from all liability of every kind and nature to individuals using said footways and approaches.”
    A gate was erected across the footways adjacent to the draw and a bridgetender in the employ of the department of parks was stationed thereat. It was the duty of the bridgetender, when the draw was about to be opened, to clear the draw of all persons and to close the gates.
    The plaintiff’s intestate was a boy fifteen years of age, who was partially blind. He was a bright boy and was in the habit of going about the city unattended. At two o’clock on a July afternoon, while the draw was being opened, the boy was seen to be on the draw, from which after it had swung away from the bridge he walked off into the river and was drowned.
    The bridgetender on duty at the time of the accident died previous to the trial and it did not appear how long the boy had been on the draw or when or under what circumstances or for what purpose he went there. It did appear, however, that about an hour before the accident, he came upon the bridge and that the bridgetender then on duty led him across the bridge by the arm and cautioned him not to go on the bridge again without an attendant, stating to him that the bridge was not a fit place for a blind boy.
    The case was submitted to the jury, which rendered a verdict against both of the defendants.
    
      Held, that as there was no evidence to show that any duty assumed by the railroad company, or that was imposed upon it, was in any way neglected, or that the accident was caused in any way hy any act of the railroad company or its employees, the judgment against the railroad company should be reversed; That the judgment against the city should also be reversed, as the evidence did not justify a finding that the intestate was free from contributory negligence; That, if the intestate was so blind that he was unable to see whether he was walking, off the end of the draw, it was negligence for him to attempt to walk across the bridge unattended, after having been warned that it was unsafe for him to do so.
    O’Brien and Hatch, JJ., concurred as to the liability of the railroad company, and dissented as to that of the city.
    Appeal, by the defendants, The New York Central and Hudson River Railroad Company and another, from a judgment' of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1903, upon the verdict of a jury for $3,000, and also separate appeals by the said defendants from orders entered in said clerk’s office on the 21st day of October, 1903, and the 9th day of November, 1903, respectively, denying the defendants’ motions for' a new trial made upon the minutes.
    
      JSoberí M. Kutschbock, for the appellant railroad company.
    
      Theodore Qowndly, for the appellant, the City of New York.
    Ta/rlvngton, Sherman .<& Jenkvns, for the respondent.
   Ingraham, J.:

The action was brought to recover for the death of the plaintiff’s intestate on the 5th day of July, 1901. It. appeared that the bridge was built over the Harlem river at One Hundred and Nifty-fifth street by the West Side and Yonkers Railway Company, in pursuance of a consent of the department "of public parks of" the city of New York granted by a resolution of the park department passed on the 7th day of January, 1880. After the passage of the resolution an agreement was made between the city of. New York' and the railway company, which provided that, in consideration of the consent, the railway company covenanted and agreed to construct the said bridge as a railroad bridge,, with ways for foot passengers; that when completed the railway company agreed to keep and maintain the said bridge and its footways in complete and perfect order, and the said footway, except when the draw was necessarily opened, should be open for |free use for all persons desiring to pass and repass the same on foot; that the use of said footway by the public should be under such rules and regulations, requirements and ordinances prescribed or which might thereafter be prescribed by the department of parks ; that the said department might appoint an inspector or detail any officer of said department to the duties of such inspector, who should do and perform such duties in relation to the subject-matter of the agreement as might be assigned to him by said department. By an additional agreement made between the Few York and Forthern Railway Company, which was the successor of the West Side and Yonkers Railway Company, and the mayor, aldermen and commonalty of the city of Few York, there was granted to the city of Few York a temporary right of way to be used by all and any persons on foot along and over a certain road or way to be laid out over and through the premises of the railroad company which obtained access to the footway on the said bridge; and by it the city of Few York was authorized to take such other measures in regard to the construction, maintenance and repair of the said road or way as should be necessary to render the same convenient and safe for the passage of pedestrians; and this agreement further provided that “ the said parties of the second part (the mayor, etc., of Few York) hereby assume all responsibility and risk of damage and personal injury to individuals while on said footways or approaches, and agree to light the same at its expense, and police the same, and maintain the necessary gates and gatemen, so that the opening and closing of the draw may be without unnecessary risk to foot passengers, and will indemnify and-save harmless the party of the first part from all liability of every kind and nature to individuals using said footways and approaches.”

In pursuance of these agreements the bridge was built with a footpath for passengers. There was a gate erected upon the footpath upon the main bridge just before coming to the draw, so that persons walking upon the footpath would be prevented from passing onto the draw of the bridge, and the department of parks maintained a watchman or bridgetender whose duty it was to open and close the gates and keep the footway in good condition. It also appeared that, upon receiving a signal that the bridge was about to be' opened, the bridgetender was instructed to immediately clear the draw of all persons and to close the gates. On the 5th of Julyy 1901, one Crawford was bridgetender on duty on this bridge at about two o’clock in the afternoon. ' At that time the draw of the bridge was opened and, as it was slowly moving, the end of the draw having been separated from the bridge, a boy was seen upon the draw walking off into the. river. It was broad daylight, there was nothing to obstruct the sight, and the only evidence in relation to the accident was that the boy walked off the end of the draw, after it had swung away from the bridge, into the river. A witness who saw the boy fall testified that he was crossing the bridge from the west to the easterly side of the river, and as he got to the bridge-tender’s house upon the bridge the watchman said to him, “ You are too late; ” that he then looked up and saw the draw slowly opening, saw that the gate was open, and then a few seconds after saw this boy walk off the end of the draw. The boy was drowned, and his body was subsequently found in the water. It appeared that the boy was about fifteen years of age; that he was partly blind and had been a pedler; that on the same day the bridgetender, who was on duty before Crawford, saw this boy start to cross the bridge alone; that the bridgetender asked him where he was going, and he said that he wanted to go to the One Hundred and Fifty-fifth street bridge, meaning the viaduct at One Hundred and Fifty-fifth street, to which the bridgetender said that he was going that way and would take the boy down; that the bridgetender led the boy by the arm down and cautioned him not to go on the bridge again, telling him that it was no fit. place for a boy who was blind, and not to go on there' unless he had somebody to lead him; that some accident might happen to him on the stairs, or something to that effect, and left him at the elevated railroad station at One Hundred and Fifty-fifth street and Eighth avenue, or the New York side.

It was upon this evidence that the case was submitted to the jury, who found a verdict against both defendants, and from that verdict the defendants separately appeal.

It is apparent that the evidence, did not justify a finding of negligence against the railroad company. It was not in control of this footpath, had nothing tó do with it, was not responsible for its care, and. there was not the slightest evidence that there was any negligence in opening the draw, that the ordinary signals were not given, or of anything to charge the railroad company with negligence. Under the agreement between the department of parks and the railroad company, it was the department of parks that undertook to safeguard this bridge and regulate the traffic there, and to provide the necessary bridgetenders to make passage safe, and there was no evidence to show that any duty assumed by the railroad company, or that was imposed upon it, was in any way neglected, or that the accident was caused in any way by any act of the railroad company or its employees.

A different question is presented as to the liability of the city. Under its agreement with the railroad company, the city assumed to maintain this footpath for the public convenience, and to provide a bridgetender, whose duty it was, upon the signal being given that the draw was to be opened, to close the gates and to see that all people were off the draw. For some reason, not explained, this boy got upon the draw before it was opened and walked off into the river. As the bridgetender and the boy are both dead, there could be no explanation given. It was proved that the bridge-tender was at the time of the accident at his shanty, which was on the footway not far from the gate leading from the west to the draw. The boy had, on this same day, about one hour before the accident, been cautioned about attempting to cross this bridge unattended. The danger of such an attempt Was explained to him, and he is next seen some time after this warning upon the draw as he was falling off. How long he had been upon the draw ; when and under what circumstances he went there, and what he was doing there, were not disclosed. The evidence furnished by his parents and sisters is that he was not entirely blind, but could see for some distance; and assuming that there was evidence to justify a finding that this bridge-tender neglected the duty of seeing that all persons were off the draw before it was opened, the question is whether or not, under these circumstances, there was evidence to justify a finding that the pláintiff’s intestate was free from contributory negligence.

I am inclined to think that the evidence does not justify such a finding. The boy was not absolutely blind, and was in the habit of going about the streets alone. He had been but a short time before upon this bridge, had been taken off by the bridgetender and cautioned not to go again on the bridge unattended. In the face of this caution, he returned to the bridge and in some way got upon the draw, and then walked off the draw into the river. While it is quite dear that a person thus afflicted is not bound to exercise the same care that a person whose sight is not impaired is bound to exercise, at the same time the decedent’s infirmity did not relieve him from the exercise of the care of a prudent person, considering his condition, in doing what he did when he was injured. He was said to be, but for his infirmity, a bright boy who was in the habit of going about the city and finding his way without difficulty. He had been cautioned not to go upon this bridge alone. He was told that he was liable to just the accident that happened to- him; and in the face of that warning he went upon the draw and then walked off the draw into the river. In the absence of testimony explaining the circumstances under which he went upon the bridge, which would tend to relieve him from a violation of the warning which he had a short time before received, there is nothing to justify a finding that he exercised, any care. Here was a perfectly apparent situation. It was broad daylight, and any one walking upon this draw at the time of the accident would necessarily have knowledge of the fact that the draw was in motion and that to walk off the end of the draw would result in a fall into the river. There could certainly be no recovery in this case if the boy had had his sight. The fact that he was partially blind would possibly, in the absence of proof that he had been warned not to go upon the bridge, have made the question of his contributory negligence a question for the jury. ■ But if he was so' blind that he was unable to see whether he was walking off the end of the draw, it was negligence for him to attempt to walk across this bridge unattended, after the warning that he had received a short time before that it was unsafe for him to do so. In other words, so far as crossing this bridge was made dangerous by his not being able to see, it was negligence for - him, in the face of á warning of the danger, to have crossed the bridge without such attendance as would enable him to avoid the danger of which he had been warned.

. My conclusion is, therefore, that this verdict, which must be based upon a finding -that the deceased was free from contributory negligence, is not supported by the evidence, and for that reason there must be a new trial.

The judgment against both the defendants and the order appealed from must, therefore, be reversed and a new trial ordered, with costs to the defendants to abide the event.

Van Brunt, P. J., concurred; McLaughlin, J., concurred in result; O’Brien and Hatch, JJ., concurred as to the railroad company and dissented as to the city.

Judgment and order reversed and new trial ordered, with costs to the appellants to abide event.  