
    Mary J. Brennan, as Administratrix, etc., of John Brennan, Deceased, Appellant, v. Albany and Greenbush Bridge Company, Respondent.
    
      Negligence — walking into the draw of a bridge only partially closed, when the gates are opened.
    
    Where a man, seventy years of age, at about nine o’clock on a dark night, walks along the footpath of a drawbridge spanning the Hudson river, and, upon reaching the draw, finds it open and the gates closed, waits until the gates are opened by the bridgetender, and then starts forward and falls into the river and is drowned, in consequence of the draw not being completely closed when the gates were opened, it cannot be said, as a matter of law, that he was guilty of contributory negligence in failing to discover that the draw was open.
    Appeal by the plaintiff, Mary J. Brennan, as administratrix, etc., •of John Brennan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 18th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.
    Plaintiff’s action is for negligence. The defendant is an incorporated bridge company, owning and operating a toll bridge crossing the Hudson river between Albany and Rensselaer. In this bridge is a draw which opens for the passage of boats. When the draw is opened gates are closed both upon the driveway and the footway for the purpose of preventing passengers from going into the river.
    Upon the 9th day of September, 1899, about nine p. m., James Brennan, the plaintiff’s intestate, was walking from Rensselaer to Albany upon the north foot passage of the bridge. When he came to the draw he found it open and the gate closed. He stopped by the gate until the boat had passed and the gate was opened by the bridge tender. He then started forward, fell into the river and was drowned. The gates had been opened before the draw was completely closed. To recover damages for the death caused by this negligence on the part of the defendant company this action is brought. At the close of plaintiff’s case defendant’s motion for a nonsuit was granted, and from the judgment entered upon this direction of the trial court this appeal is taken.
    Further facts appear in the opinion.
    
      
      John B. Wolfe, for the appellant.
    
      Randall J. Le Boevf, for the respondent.
   Smith, J.: .

The negligence of the defendant is unquestioned. The opening of the gates before the closing of the draw rendered dangerous a passageway which defendant was bound to protect. The contributory negligence of the deceased is. the sole issue.- The trial court has held that his conduct was negligent as matter of law. Of this ruling the appellant complains.

In Palmer v. N. Y. C. & H. R. R. R. Co. (112 N. Y. 234) the plaintiff’s intestate had approached a crossing at which there were gates which were left open. He started to cross the track and was struck by an engine which had approached the crossing without signal. Upon appeal the main question argued was the. contributory negligence of the deceased. Danfoeth, J., in writing for'the court, says:. “The duty of the company was .imperative, and it "is obvious that an open gate was a' direct and explicit assnr-. anee to the traveler that neither train nor engine was rendering the way dangerous—'that none was passing. A closed gate was an obstruction preventing access to the road; an open gate was equally positive in the implication to be derived from it that the way was safe. Nothing less could be implied and no other conclusion could be drawn from that circumstance. The silence of the bell and whistle was an indication that no train or locomotive • was within eighty rods of the crossing; the open gate an affirmative and explicit declaration and representation that neither train nor. locomotive was approaching with" intent to pass.” Upon page 242 the court further says: . “ When, therefore, he moves on upon the track under an assurance of safety .from those owning it, and from their servants, whose especial duty it is to keep their attention fixed upon it, and who have within their power the means, of avoiding the infliction of injury, and whose business it is to use' them so as to prevent danger, it is for the jury to say whether the traveler exercised that ordinary care and prudence which under the circumstances it would be natural to expect.” This doctrine is reiterated in Oldenburg v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 418). In Tousey v. Roberts (114 N. Y. 312) the door of an elevator, had been thrown open, the plaintiff had proceeded to step upon the elevator and had fallen down an empty shaft. In the opinion in that case it is said : An elevator for the carriage of persons is not, like a railroad crossing at a highway, supposed to be a place of danger,.to be approached with great caution; but, on the contrary, it may be assumed, when the door is thrown open by an attendant, to be a place which may be safely entered without stopping to look, listen or make a special examination.”

The bridge in question presented no special danger which called for the exercise of an unusual vigilance upon the part of a passenger. With a closed draw the way was safe. When the draw was open, the way was still safe because the gates were closed. The defendant by requirement of law maintained these gates, closing them when the draw was open and opening them after the draw was closed. Upon the night in question, then, the plaintiff’s intestate might lawfully assume, when those gates were opened, that the danger had passed, and while he was still required to exercise ordinary care, the law required of him no special care to see that his way was safe, and he was entitled to rest somewhat upon the assurance that the defendant had not opened the gate until a safe passageway had been restored.

The argument of the respondent is that, notwithstanding the open gate, it was obvious that the draw was not then closed and that the plaintiff’s intestate must have seen or should have seen the danger and have avoided it. It will probably not be contended that plaintiff’s intestate did in fact see the danger and deliberately court death. This at least will not be presumed. Should he have.seen the danger ? It. appears from the evidence that most of the plaintiff’s witnesses who were present upon that night did in fact see that the draw had not been closed. From this defendant argues that the plaintiff’s intestate should have noticed this fact. How the witness saw that the draw was still open is not shown. It is nowhere sworn that from the footpath of the bridge any danger was apparent. The night was very dark. There was no moon. The lights were all turned to the driveway of the bridge in the center. One witness swears that in going toward Albany your eyes were dazzled by the Albany lights. After the boats had passed, the river below was dark. No chasm appeared before plaintiff’s intestate into which he was stepping. The jury might well have inférred that the knowledge by these witnesses of the situation of the draw was by noticing the superstructure. Can it be ruled as matter of law that plaintiff’s intestate should have had his eye upon that superstructure of. the draw ? Then, too, to what extent they “ sensed ” the situation before Brennan walked off is not clear. That it was not fully realized would seem to be indicated by the. fact as sworn to by one witness that immediately when the gate was opened, they all started on and only stopped when some one called that the man had gone over. The horror of the accident undoubtedly quickened their realization of the situation. Can it be said then that plaintiff’s intestate, a man seventy years of age, should as matter of law have realized the danger and avoided it ? In open daylight an open, gate may not always be. a guarantor of safety, Upon that dark night, however,; we think that- plaintiff’s intestate might reasonably accept the assurance of safety tendered him by the opening of the gate and- a jury only could charge, him with negligence therefor, The ruling of the court that he was guilty of negligence was, therefore, unauthorized.

All concurred, except Chase, J., not sitting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  