
    Warren D. Fisher, Resp’t, v. The Village of Cambridge, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Negligence — Charge.
    A stream crossed a street nearly at right angles and over it was a highway bridge which defendant was not bound to maintain. After its incorporation defendant constructed foot bridges on either side of the highway bridge as continuations of the sidewalks. These it was bound to maintain. These bridges were almost on a level with each other and filled the whole street. Plaintiff was familiar with the locality. Plaintiff drove lengthwise of a sidewalk and then on the foot bridge. Part of his wagon and team was on the foot bridge and part on the highway bridge. The foot bridge broke and plaintiff was injured. The Penal Code, § 652, makes it a misdemeanor willfully and without authority to drive “along upon” a sidewalk. The by-laws of defendant established a penalty for this offense. The court charged that if plaintiff drove there wilfully the action was barred, but he further said that if the public had been allowed to use the sidewalk in that way plaintiff might have supposed that he had a right to go there, and that that would not be wilfully violating the statute. Held, error. The plaintiff knew that this was a sidewalk, and the violation of the law by others was no excuse.
    2. Sake — Contributory.
    Plaintiff was guilty of contributory negligence, as he was not misled into thinking he was on the highway bridge, and the foot bridge was not shown to be insufficient for foot passengers.
    Appeal from judgment in favor of plaintiff, entereu upon verdict and from order denying motion for a new trial.
    
      D. M. Westfall, for app’lt; Charles M. Davison, for resp’t.
   Learned, P. J.

This is an appeal from a judgment on a verdict in favor of plaintiff and from an order denying a new trial. The action is to recover damages for injury occasioned by breaking through a bridge on which plaintiff drove with a team.

Main street is one of the principal streets in the village. It is crossed, or intersected, about at right angles by a creek or stream eighteen to twenty feet wide. Prior to the incorporation of the village a highway bridge, having a span of about twenty feet, crossed this stream; a wooden bridge about twenty-eight feet wide. Pedestrians crossed the stream on this bridge. Soon after the passage of the charter defendant constructed on each side of this highway bridge another bridge on nearly the same level, extending from this highway bridge to the center line of the street.

Each of these bridges had about the same span with the highway bridge,” and each was about twelve or fifteen feet wide. The highway bridge and these two side bridges thus covered the whole width of the street There was no very distinct demarkation between them, except that the south bridge was some three inches below the highway bridge. It seems to be conceded that it was not the duty of the defendant to keep in repair the highway bridge; while it was its duty to keep in repair these side bridges.

These were in a line with and formed a part of the continuous sidewalks on the sides of the street.

On the south side of the street is the Eldredge store, adjoining the stream on the east, with a platform in front coming about to the south line of the street. In front of the store is a stone-flagged walk five feet wide and about three feet from the platform of the store. Some three feet beyond the walk is a gutter in the earth, which continues along to the stream. The south line of the sidewalk bridge above described, is about in a line with the south line of the flagged walk; and its north line is about in a line with the south line of the gutter. So that the sidewalk bridge is of about the width of the' flagged walk, the gutter and the intermediate space of three feet. Where the gutter comes to the bridge there is what may be called a sluiceway, by which the water running in the gutter pours under the sidewalk bridge into the stream below.

Eldredge’s store is about thirty feet in front. Two hitching posts, about seventeen feet apart, stand between the flagged walk and the gutter. The western is about thirteen feet from the east end of the bridge.

The plaintiff, with a team of horses and a truck wagon, drove from the east, coming upon the sidewalk, where an alley adjoining Eldredge’s store meets the street. He drove upon the sidewalk in front of Eldredge’s store, so that his nigh horse was south of the flagging, and his team and wagon were parallel with the store. He then put a stove on his wagon and drove west. He continued along the sidewalk inside of the west hitching post, and thus upon the south sidewalk bridge. As he was going then diagonally, so as to pass from the sidewalk bridge to the middle of the street, the sidewalk bridge gave way ; the hind wheels of the wagon were left on the abutment of the bridge; the forward wheels went into the creek; his horses hind feet went down; the off horse having one of his fore feet on the highway bridge. The plaintiff was thus injured.

There is evidence enough to go to the jury on the question of the defective condition of the bridge, if considered as a bridge intended to support the weight of teams of horses and loaded wagons. It is not shown that the bridge was insufficient for foot passengers. It is proved that plaintiff knew that this sidewalk-bridge was the place where foot passengers crossed and that it was built for them.

The principal question in this case must be whether the plaintiff was' justified in driving his team across this sidewalk-bridge, and whether the accident was not caused by his own negligence in going where it was improper to go; and in close connection with this, whether it was negligent for defendant not to build this sidewalk-bridge so that it would be strong enough for teams and wagons.

It must be noticed that the evidence shows that, even after the plaintiff had driven upon the sidewalk lengthwise in front of Eldredge’s store, instead of backing the end of the wagon up to the platform, he might, by backing sufficiently into the alley, have gone out between the hitching posts. Of course it was more convenient to drive right along upon the sidewalk; but no reason is shown why all trouble could not have been avoided in the first place by backing the wagon between the posts up to the platform of the store. Obviously the difficulty in which plaintiff found himself was owing to the manner in which he had chosen to approach the store; a place with which he was entirely familiar. And after he had loaded his wagon, instead of getting off from the sidewalk at once, he chose to continue to drive thereon for his own convenience.

It is said by the plaintiff that there was very little to distinguish the highway bridge from the sidewalk-bridge. How, if the plaintiff had been driving along the street where wagons belong, and if, on coming to the highway bridge, he had been deceived as to its boundary, and by driving too far on the south side had gone over on the part called the sidewalk-bridge, then there would have been ground for the argument that there was no determination between them and that he had been misled, and had mistakenly driven on the sidewalk-bridge.

But this plaintiff is not in that position. He knew he was on the sidewalk when he was in front of Eldredge’s. He knew that the part of the bridge before him was a continuation of that sidewalk. With -this knowledge he drove directly forward and upon it. It was of no consequence to him where the exact line was between the two. It was enough that he knew he was driving upon a bridge evidently intended for foot passengers. Whether he knew where the highway bridge began or did not, would be a matter quite immaterial. For he had knowingly driven on the part which was not the highway bridge. Such cases as Jewhurst v. Syracuse, 108 N. Y., 303 ; 13 N. Y. State Rep., 623, cited by plaintiff, are just the reverse of this. There the injured party, intending to go on the proper part of the highway, was misled by appearances and got beyond the true boundaries. It was said that the situation was such as to induce they belief in one passing along, and exercising reasonable care, that he was within the line, and, therefore, he might recover although the defective place was beyond the line. Ho such case is here.

There is evidence that in many instances teams driving from the west were fastened to the west hitching post, and that when so fastened the off wheels of the wagon wquld be on what is called the south sidewalk bridge, and the off horse generally in the gutter. It is evident, therefore, that in these cases only a part of the weight of the wagon and the weight of one horse only would be on the sidewalk-bridge. It appears, also, that draymen like the plaintiff driving westward from Eldredge’s store did sometimes take the same course which plaintiff took, driving along the sidewalk and on the sidewalk-bridge, and so to the middle of the street. The plaintiff urges that he had seen this done and had done it himself, and that defendant and its officers had acquiesced. Hence, he claims that he was justified in the manner he drove, because he was led thus by the appearances. But it was pointed out in Cusick v. Adams, 115 N. Y., 55; 23 N. Y. State Rep., 548, that it was not a question of appearances, but a question what duty the defendant owed to the plaintiff. So, also, in Splittorf v. State, 108 N. Y., 205; 13 N. Y. State Rep., 472. He certainly was not, and could not have been, misled into a belief that this sidewalk and this sidewalk-bridge were places where the authorities designed that teams should drive. Of course in cities and villages teams may temporarily obstruct sidewalks. Welch v. Wilson, 101 N. Y., 254; 1 N. Y. State Rep., 19. This is a necessity. And possibly they may do this in the manner in which plaintiff acted, when he drove the side of his team and wagon up by Eldredge’s store, instead of backing in. If he had done only this, he would not have been injured. But we are not willing to say that, even in that act, the person who thus drives does not take the risk of the condition of the sidewalk. It may well be doubted whether municipal authorities are bound to keep sidewalks in such order that teams and wagons can safely drive upon them. In the case last cited the obstruction was caused by skids, not by driving á wagon upon the sidewalk.

The Penal Code, § 652, makes it a misdemeanor wilfully and without authority to drive “ along upon ” a sidewalk. The bylaws of defendant establish a penalty for the offense. The learned justice charged that if plaintiff was wilfully driving on the sidewalk and the injury came from that, the action would be barred. But he charged that the public had been allowed to use the sidewalk in a way that plaintiff might have supposed he had a right to go there. If so, that he would not be wilfully violating the statute. We think that was incorrect. “Wilfully” is in opposition to “accidentally” or “ignorantly.” The plaintiff knew that this was a sidewalk and he drove thereon intentionally. The fact that he had seen others violate the law could be no excuse.

It is said in Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y., 538, that disobedience of a statute is legal negligence. See also Hayes v. M. C. R. R. Co., 111 U. S., 240, and cases cited. And also Lambert v. Staten Island R. R. Co., 70 N. Y., 104; Salisbury v. Herchenroder, 106 Mass., 458; Van Norden v. Robinson, 45 Hun, 573; 10 N. Y. State Rep., 643.

We are not willing to assert that the violation of this law and ordinance would be, in all cases, a bar to a recovery. That may “ depend on the purview of the legislature in the particular statute and the language which they have there employed.” Atkinson v. Newcastle Water Works Co., L. R., 2 Ex. Div., 441. Yet the law and the ordinance constituted a notice to him that the sidewalk was a place where the defendant did not authorize him to travel. It was a place where, if he drove his team, they did not owe the duty of giving him a safe road. And though others had traveled there, as in the case of Cusick v. Adams, the duty of the defendant was not thereby enlarged. Eor the place was plainly and unquestionably a sidewalk. However many times plaintiff had seen other draymen, in going from Eldredge’s, violate both the statute and the ordinance, he would not thereby be justified in his violation. As before remarked, the omission of the defendant to prosecute for violations, or its supposed acquiescence in former acts, could be material only when it misled the plaintiff so that he did not know that the place where he was driving was a sidewalk. And no such mistake was under the circumstances possible.

It is evident also that the question whether defendant was negligent must depend on similar considerations. The defendant had built a bridge strong enough for foot passengers; but not, as it appeared, strong enough for teams; though teams had been on it before. There had been used in its construction sofne partly decayed timbers. So that there was evidence for the jury as to sufficiency of construction. But obviously no question could exist on this point unless the plaintiff was in some way authorized to believe that this sidewalk-bridge was a place intended for teams. So that the question of defendant’s negligence could only be submitted to the jury if it should appear that plaintiff was justified in going upon this sidewalk-bridge. It seems apparent from the testimony also that the part of the sidewalk-bridge which fell was that nearest to the highway bridge where the defective timbers had been used. Inasmuch, however, as the plaintiff came on that part, not from the highway bridge but from the south part of the sidewalk bridge, that fact does not seem to be material on the question of defendant’s negligence.

In the view we have taken we have not deemed it necessary to consider objections to evidence, or particular exceptions to the charge.

Judgment and order reversed, new trial granted, costs to abide event

Lahdom and Math am, JJ., concur.  