
    Keturah Willdigg, as Administratrix, etc., Resp’t, v. City of Brooklyn et al., App’lts.
    
      (Supreme Court, General Term. Second Department,
    
    
      Filed July 27, 1894.)
    
    Municipal cokfokation—Negligence.
    The evidence ivas held to be sufficient to sustain a finding that the intestate’s death was cause by the defective condition of a bridge over an excavation in a sidewalk.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes:
    
      Albert G. McDonald (H. O. Wood and Henry Yonge, of counsel), for app’lt city of Brooklyn; Ernest Lasche (E. B. Barnum, of counsel), for app’lt Luecke; Kellogg, Rose & Smith (Arthur H. Smith, of counsel), for resp’t.
   Dykman, J.

—While this is a border case, it is yet one in which d.fferent minds would reach diverse conclusions. The facts proven leave the case in some obscurity, but the legitimate inferences which a jury would be permitted to draw from the established facts are sufficient to sustain the verdict. The defendant Luecke, being the owner of premises fronting on Broadway, in the city of Brooklyn, and desirous of improving the same, procured permission from the city of Brooklyn to make an excavation under the sidewalk in front of his lot for the purpose of constructing a vault. After the issuing of thé permit, Luecke removed the sidewalk, made an excavation, and erected over it a temporary bridge, about three feet above the surface and covering the entire width thereof. The bridge was completed on the 18th day of September, 1892. There was testimony which tended to show that the floor of the bridge was loose in some places, and sprung under the feet of passengers; that there was no diagonal railing down the steps from the horizontal railing to the sidewalk; and that the railings on the sides was not strong. At the end of the platform, where the deceased was found, there was a step from the sidewalk, composed of two large blocks about 8 or 10 inches high, and then there was a step, about 20 inches high, to the top pf the platform. One witness said that there was a space of two inches between the ends of the boards and the upper step, and that those boards which ran lengthwise of ■ the bridge gave under the weight of a person passing over them. The deceased man was about 65 years of age, healthy, sober, and industrious. On the night of September 24, 1892, he left Beck’s saloon a little after 12 o’clock at night, and was found about 12.20 or 12.80 at the end of the bridge nearest his home, and furthest from Beck’s. His body was lying parallel with the sidewalk, with his feet about 18 inches from the foot of the platform, and his head under some flagstones which had been piled up on the sidewalk a short distance from the platform. His skull was crushed, and he was unconscious, and remained so until he died, a few days thereafter. The hand rail on the outer or street side of the platform was broken, and a brace from the top of that rail to a cross plank was loose.

This action is brought by the administratrix of the deceased against the city and Luecke, and the plaintiff had a verdict against both, and both defendants have appealed from the judgment entered thereon. The duties and obligations of the landowner and of the city were plainly and correctly stated to the jury by the trial judge. The position of the deceased man when he was found is significant of much. He was at the end of the bridge nearest his home, and furthest from Beck’s saloon. From this, in connection with other established facts, it may be assumed that he was on his way home. His feet were within 18 inches of the first step, his head was driven under some flagstones, and his skulhwas fractured. From that it may be inferred that he fell with great force from an elevated position, presumably from the bridge. Hence it may be inferred that he was crossing the bridge, on his way home. If there was a space of two inches between the ends of the floor boards and the timber which constituted the upper step, and those boards sunk under the feet of persons crossing, it is easily seen that the fall of the deceased may have been caused in that way. Further, if the hand rail gave way, and was broken, it may well be that the deceased man caught hold of the same when he stumbled, to save himself from a fall. All these circumstances, in connection with the testimony of the witness, have an important bearing, both upon the question of the negligence of the defendants, as well as the freedom therefrom of the deceased. In relation to the negligence of the city the case is reasonably plain. It had both actual and constructive notice of the defective condition of the bridge. The exceptions in the case present no errors, and the judgment and order denying the motion for a new trial should be affirrtied, with costs.  