
    Nellie C. Gibney, Adm’rx, Resp’t, v. The State of New York, App’lt.
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    State—Negligence—Canals.
    Plaintiff’s child fell into the canal through an opening which the state negligently left in a bridge; the father plunged in after his child, and both were drowned. Held, that the death of both was the consequence of the negligence of the state, for which it was liable.
    Appeal from judgment of the court of claims awarding damages to claimant.
    
      S. W. Bosendale, Att’y-Gen’I, for app’lt;
    
      Edwin G. Angle, for resp’t.
   Andrews, Oh. J.

We have decided on the appeal brought from the award of damages for the death of the infant son of the plaintiff, that the evidence authorized a finding of negligence on the part of the state authorities in permitting the opening in the bridge, through which the boy fell into the canal, to remain unguarded, and also the further finding that there was no contributory negligence on the part of the parents of the child, and we, therefore, affirmed the award. The present appeal is from an award made for damages sustained by the widow and next of kin, arising from the drowning of the plaintiff’s husband and the father of the child, in an attempt to rescue the child from the canal, into which the child had fallen.

The material facts are undisputed. The plaintiff, with her husband and child, in an evening in August, while crossing the bridge, met an acquaintance and the parents stopped to talk with him. The child remained within a few feet of them and suddenly fell through the opening in the railing of the bridge into the canal below. The father, as soon as he discovered that the boy was gone, plunged into the canal to recover the child and both father and son were drowned.

It is contended by the attorney-gen era! that the negligence of the state in permitting the bridge to remain in an unsafe condition, while it may have been the cause of the death of the boy, cannot be regarded as the cause of the death of the father, although it occurred in an attempt to save the life -of the child. It is, doubtless, true that except for the peril of the child, occasioned by his falling through the bridge into the canal, there would have been no connection between the negligence of the state and the drowning of the father. But the peril to which the child was exposed was, as has been found, the result of the negligence of the state, and the peril to which-the father exposed himself was the natural consequence of the situation. It would have been in contradiction of the most common facts in human experience if the father had not plunged into the canal to save his child. But while the immediate cause of the peril to which the father exposed himself was tlie peril of the child, for the purpose of administering legal remedies, the cause of the peril in both cases may be attributed to the culpable negligence of the state in leaving the bridge in a danger- < .us condition. There is great difficulty in many cases in fixing the responsible cause of an injury. When there is a break in the chain of causes by the intervention of a new agency, and then an injury happens, is it to be attributed to the new element, and is this to be treated as the originating cause to the exclusion of the antecedent one, without which no occasion would have arisen for the introduction of a new element? It is impossible to formulate a rule on the subject capable of definite and easy application.

The general rule is that natural and proximate results of a wrong are those only of which the law can take notice. But where a consequence is to be deemed proximate within the rule is. the point of difficulty. In this case these elements are present: culpable negligence on the part of the state; the falling of a child into the canal through the opening which the state negligently left-in the bridge ; the natural and instinctive act of the father in plunging into the canal to rescue the child; the drowning of both ; the fact that such an accident as that which befell the child might reasonably have been anticipated as the result of the condition of the bridge, and the further consideration that a parent or other person seeing the child in the water would incur every reasonable hazard for its rescue. We think it may be justly said that the death both of the child and parent was the consequence of the negligence of the state, and that the unsafe bridge was in a legal and judicial sense the cause of the drowning of both.

We can perceive no sound distinction between this case and the Eckert case, 43 N. Y., 502. In that case the railroad train was being propelled at a dangerous speed. The negligence was active. In this case it consisted of an omission, that is, in the failure to originally construct the bridge properly, or permitting it to become dangerous. We do not perceive how the difference in the circumstances of the negligence affects the question of proximateness between the cause and the result so as to distinguish in this respect the two cases.

The Balloon case, 19 Johns., 381, and the case of Thomas v. Winchester, 2 Seld., 397, give support to our conclusion.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Maynard, J., not sitting.  