
    John H. Maginnis, by Guardian, etc., Resp’t, v. The City of Brooklyn, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 28, 1888.)
    
    Municipal cobfobations—When not guilty op negligence.
    The bridge over the Gowanus canal, at Union street, in the city of Brooklyn was so constructed that it revolved on a pier in the center, and was opened to allow vessels to pass in such canal. At each end of the bridge on the street were iron lattice gates, which were lowered when the. bridge was opened as a warning to travelers, and when not lowered were folded up against a column, one on each side. The gates came together in, the center of the street, and there was a space of sixteen inches between, the surface of the street and the bottom of the gates when closed. On the trial it appeared that children frequently crawled under the gates when closed, and at the time in question the plaintiff, a boy of six years of age, in some way got upon the bridge when it was open, and as the bridge was swung into its proper place the plaintiff’s foot was crushed. There was no proof given how the boy got upon the bridge, and there was testimony that there were no gates made which would reach nearer to the surface of the street, and which could he operated with safety to the men lowering the same. Held, that the plaintiff was not entitled to recover any damages for the injury received. That it was not necessary for the city to provide a harrier across the highway so that a traveler cannot climb over or crawl under it.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury rendered, at the circuit of said court.
    
      Wm. G. Cook, for resp’t; Almet F. Jenks, forapp’lt.
   Clement, Ch. J.

The facts of this case are contained in a very narrow compass. The bridge over the Growanus canal at Union street, in this city, is so constructed that it revolves on a pier in the center, and is opened to allow vessels to pass in such canal.

At each end of the bridge on the street are iron lattice gates, which are lowered when the bridge is opened as a warning to travelers on the street, and when not lowered are folded up against a column, one on each side. LThe gates come together in the center of the street, and there is a space not exceeding sixteen inches between the surface of the street and the bottom of the gates when closed.

There was proof that children frequently crawled under - the gates when closed, and on April 29, 1886, the plaintiff, a boy six years of age, in some way got upon the bridge when it was open, and as the bridge was swung into its proper place, the plaintiff’s foot was crushed. There was no proof given how the boy got upon the bridge, and there was testimony that there were no gates made which would reach nearer to the surface of the street and which could be operated with safety to the men lowering them. Plaintiff obtained a verdict at the trial term for the sum of $1,500, and from the judgment entered on said verdict and the order denying a new trial, this appeal is taken.

We are of opinion that the judgment cannot be sustained on the record. There was no testimony showing how the plaintiff got upon the bridge, and in the absence of proof we do not see now the jury could find that he crawled under the gate. If we assume that the boy did get upon the bridge by reason of the fact that there was a space of sixteen inches between the gates and the surface of the street, even then we think that the complaint should have been dismissed. It was not an unlawful act to open the bridge, as the Growanus Canal is a navigable steam and while the city has a right to bridge the same, it is obliged to have draw-bridges "and to open the same whenever vessels pass up or down the canal.

Whenever a draw-bridge is opened it is necessary to warn travelers of the fact, but it is not necessary to provide a barrier across the highway, so that a traveler cannot climb over or crawl under it. In the case of Hart, Administrator v. The Hudson River Bridge Company (84 N. Y., 56), it appeared that the plaintiff’s intestate while crossing a bridge over the Hudson River at Albany, fell through an open draw and was drowned, and the court of appeals held that it was not error for the trial judge to charge the jury that if they believed the gate was not entirely closed, but the bottom of it was two feet and a half from the bridge floor, the plaintiff could not recover.

Judge Miller in that case says at page 62, The defendant was not bound, we think, to place an obstruction, or a warning in the way which rendered it absolutely impossible to pass; and it was sufficient to guard against danger or accident when a proper degree of vigilance was exercised.” In the case before us it is claimed that a higher degree of care was necessary on the part of the city authorities because children were in the habit of getting upon the bridge when the gates were closed; but it is not necessary to decide the question, for it is an undisputed fact that there were no gates, which could be operated safely, which came down nearer to the ground than the gate used at the time plaintiff was injured. We hold that the city when it provided the best gates which could be obtained, performed its duty to the traveling public, and took all the reasonable precautions which the law required. If the city performed its duty, no claim of negligence can be sustained and it makes no difference whether the party injured was an infant or an adult.

There is no claim that there was carelessness on the part of the employees of the city in closing the bridge.

The judgment and order denying new trial must be reverse and a new trial granted. Costs to abide the event.

Yak Wyck, J., concurs.  