
    Herbert M. Taylor, Resp’t, v. The Town of Constable, App’lt.
    
      (Supreme Court, General Term, Third Deportment,
    
    
      Filed September 25, 1891.)
    
    1. Negligence—Contributory— Knowledge of condition of bridge.
    Plaintiff was overseer of highways and examined the bridge in question with the commissioner, who said it was safe, but engaged plaintiff to repair it on a subsequent day by replacing some timbers with sound ones, to do which props were needed, which the commissioner agreed to furnish. The commissioner did not appear on the day set nor furnish the props. Subsequently plaintiff attempted to drive over the bridge with a threshing separator, when the bridge broke and he was injured. Held, that, on these facts, plaintiff could not be charged, as matter of law, with contributory negligence; but that it was a question for the jury.
    .2. Same—Towns—Constitutional law.
    Chap. 700, Laws 1881, making towns liable for injuries caused by defects in highways and bridges in cases where the commissioners of highways were formerly liable, is not unconstitutional.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    Action to recover damages for injuries caused by reason of the fall of one of defendant’s bridges, by means of which 'plaintiff was thrown into the water. For the facts in the case see former opinion, 32 N. Y. State Rep., 482.
    
      Badger & Badger (John T. Badger, of counsel), for app’lt; Kellas & Munsill (John P. Bellas, of counsel), for resp’t.
   Learned, P. J.

This case has already been before this court; and we are therefore somewhat familiar with the facts. On the first trial the learned justice nonsuited the plaintiff, substantially on the ground that as the plaintiff was overseer of the highway and had had some arrangements, as detailed in the evidence, with the commissioner of highways as to the repair of the bridge, he could not recover for his injury although the bridge was proved unquestionably to be out of repair.

We were of opinion that that was erroneous; and that the case should have gone to the jury. 32 N. Y. State Rep., 482.

On the second trial the jury found a verdict for the plaintiff and the defendant now appeals.

The defendant urges that the complaint is defective because while it alleges the accident and the defective condition of the bridge, it does not expressly allege that the fall of the bridge and the injury to plaintiff were caused by such defective condition or by the negligence of defendant or its .officer. The meaning of the complaint is unquestionable and this slight omission is of no consequence. Bo one could misunderstand the meaning.

There is no doubt from the evidence that the bridge had been for a considerable time in a very defective condition and that this was known to the commissioner of highways. In fact as the answer avers that for a long time prior to the accident the plaintiff knew that the bridge was unsafe, unfit for public travel and dangerous, and further speaks affirmatively of the unsafe, unfit and dangerous condition of the bridge at the time of the accident, there is no need to -discuss that part of the case.

The real defense is that the plaintiff knew of this, and, therefore, was himself negligent in going upon the bridge. We think that that was a question for the jury. And the learned justice submitted it to them very fairly. He left it to them to say whether, with the knowledge the plaintiff had, a reasonably prudent man would have gone over the bridge. That must be the question in such a case. A bridge which to some persons looks dangerous may after all be safe. And, on the other hand, a bridge which looks safe may be dangerous. The commissioner of highways had examined it with plaintiff’s aid not long before, and had said it was safe. Heavily loaded trains had crossed it nearly every day, and it stood open for public travel. We cannot say that the jury erred in holding that the plaintiff acted as a prudent man. It is unnecessary to repeat the testimony bearing on this point.

Another matter bearing somewhat on this same point is urged by the defendant. That is the arrangement made by the commissioner with the plaintiff in regard to the repairing of the bridge. The plaintiff and another were engaged by the commissioner as workmen to make the repairs which he had determined to make. He engaged men to help him by the day. He got some timber for the purpose, and they did some work on Friday.' He set the following Tuesday to go back and complete the job. But they needed some props to prevent the bridge from sagging. The commissioner said he would try to get them from Mr. Cargan, and that if Taylor and the other men saw Cargan they could get the props. He said that if he did not get there on Tuesday they might go on with the work, and they assented. The commissioner did not go there on Tuesday. It was too stormy to work. He did not go there again until the accident, a week and a half or two weeks.

Bow the plaintiff cannot on this state of facts be charged-with contributory negligence. He was only a workman, hired by the commissioner, and was under no obligation to continue the woriz especially on a day when the commissioner did not come be. cause it was too stormy. Certain props were needed to support the bridge in order that they might make the repairs. These the commissioner was to procure. It would seem that without them the men could not work. And the commissioner did not procure these props. This constituted another reason why the plaintiff was not negligent in not going on with the work. Time enough elapsed after that Tuesday within which the commissioner could have repaired the bridge before the accident, so that he remains culpable. And it is not shown that without the props, which he was to procure, the plaintiff could safely have ventured to replace the rotten part of the bridge with sound timbers. We cannot therefore say as matter of law that the plaintiff was negligent

It is further urged that chap. 700, Laws of 1881, which manes towns liable in these cases, is unconstitutional. We think not. It is only an extension to towns, to some partial extent, of a liability constantly enforced against cities. A city elects, or it may be the common council appoint, a superintendent of streets, or other officer, charged with the duty of repairing and keeping in order the streets. He neglects his duty and the city is liable for the consequential damages to travelers. The charter of the city imposes the duty of taking care of the streets on this officer, substantially as the statute imposes a similar duty on commissioners of highways in towns. Yet for his neglect the city is liable. This is only one of the many instances in which the members of a corporate body suffer for the misconduct of one over whom they have practically no control. The inhabitants of a town or the citizens of a city cannot as a body repair streets. Some individual must be chosen for that purpose. It might be said that the town or city had nothing further to do with the matter, and that only the officer was liable for the consequences of his neglect. But the policy of our law in this state has been otherwise. The city and now the town are made liable as for the acts of an agent. Probably it was thought that if the city or town would elect proper officers the work would be attended to. At any rate the general principle has long been settled, and we see no reason why an application of that principle to towns should he unconstitutional.

Judgment and order affirmed, with costs.

Landon and Mayham, JJ., concur.  