
    Lina O’Bryan, as Administratrix, etc., of Orian O’Bryan, Deceased, Appellant, v. The State of New York, Respondent.
    Third Department,
    December 28, 1911.
    Negligence —death caused by fall of State bridge — liability of State — statutes establishing load which bridges must sustain — contribr utory negligence.
    
      Qucere, as to whether the statutes giving immunity to towns for damages resulting from the fall of a bridge caused by vehicles exceeding certain weights apply to the State or any person or corporation maintaining bridges.
    In any event, where a person driving a traction engine weighing in the neighborhood of. five tons over a canal bridge owned by the State was killed when the bridge collapsed, the State cannot escape liability on the theory that it was entitled to the protection of the statutes aforesaid where at the time of the accident the statutory load which a town bridge was required to bear was eight tons.
    Assuming that the statutory load which a town bridge must bear applies also to highway bridges across a canal maintained by the State, the State was negligent in allowing the bridge to remain in a condition where it would not bear the statutory load of eight tons for 104 days after the statute establishing that load went into effect.
    
      It seems, that if the State were unable to reconstruct the bridge within that time it should have given notice to the public that it would not sustain the statutory load.
    "Where it appears that the bridge which broke under the traction engine operated by the decedent had been built for many years; that it had ' been repaired by a day laborer having no knowledge of bridge construction; that the old sleepers of the bridge had rotted and the new ones put in were cross-grained hemlock, it is error for the Court of Claims to dismiss the complaint in an action to recover for death, so caused.
    The decedent, having no notice that the bridge would not bear the statutory load, had reason to believe that the'State had performed its duty in making the bridge reasonably safe and that it would support a load not exceeding five tons, and hence cannot be charged with contributory negligence.
    Appeal by the plaintiff, Lina O’Bryan, as administratrix, etc., from a judgment of the Court of Claims of the State of New York in favor of the defendant,, entered in the office of the clerk of said court on the 1st day of September, 1910, dismissing the plaintiff’s complaint.
    The traction engine upon which the plaintiff’s intestate was riding fell through the bridge over the old Chenango canal, which is a feeder of the Erie canal, at Pecksport in the town of Eaton. The bridge was a truss bridge resting upon two abutments which were about twenty-five feet apart. A needle beam ran across the bridge in the center, and from it sleepers three or four inches thick and eight inches wide extended from the needle beam to the abutment on either side. The roadway was twelve feet wide, and there were ten or twelve of these sleepers sustaining the floor of the bridge. The bridge was originally built in 1896 or 1897, and in 1907 was repaired by a day laborer who had but little experience or knowledge with reference to bridges. He put five new sleepers on each side of the needle beam, putting them in between the old sleepers. The bridge was then planked with three-inch plank. The new sleepers were hemlock, and after the bridge fell it was found that some of them were splintered, being wide at one end and sharp at the other. The old sleepers were pine, and some were broken off in the middle, and some near the ends, and were found quite rotten. Some could be pulled apart with the fingers. The engine weighed'about four tons and a half; the intestate, weighing 160 pounds, was on it at the time of the fall. The intestate, with the road commissioner, was at work upon the roads, and when they came to the bridge they'placed some plank length- . wise along it for the wheels of the engine to run upon to prevent their crushing into the plank and to strengthen the bridge.
    
      John A. Johnson [Charles A. Hitchcock of counsel], for the appellant.
    
      Thomas Carmody, Attorney-General [Wilber W. Chambers, Deputy, of counsel], for the respondent.
   Kellogg, J.:

The evidence indicates that the death of the intestate came from the negligence of the State in not properly maintaining the bridge. It had been built for years; there was no proper inspection, and it was repaired by a common day laborer who had no practical knowledge or experience in constructing or repairing bridges. Some of the old sleepers were rotten, some of the new ones were cross-grained hemlock, and unless the statutes about to be referred to relieve the State from liability, it is clearly, responsible for the death of the intestate. It may be questionable whether the statutes furnish immunity to the State or any person or corporation maintaining a bridge other than the town itself. (Bush v. D., L. & W. R. R. Co., 166 N. Y. 210.) But we may assume for the purposes of this case that the- statutory “load” applies to a State bridge which is used as a part of the highway system.

Chapter 210 of the Laws of 1890, which was an amendment of chapter 526 of the Laws of 1887, exempts a town from liability for damages by the fall of a bridge while a .traction engine of the weight of five tons or over, exclusive of fuel and water, is upon it. Section 154 of chapter 568 of the Laws of 1890 (the Highway Law, being chapter 19 of the General Laws) exempts a town from liability for damage by the fall of a bridge while any vehicle and load together Weighing four tons or over is upon it, and this latter statute purports to repeal chapter 526 of the Laws of 1887 and the acts amendatory thereof. Chapter 1 of the General Laws (Laws of 1892, chap. 677), known as the Statutory Construction Law, by section 33 provides that no provision of any chapter of the revision of the General Laws of which that chapter is a part shall supersede or repeal by implication any law passed at the same session of the Legislature at which any such chapter was enacted, and that an amendatory law passed at such session shall not be deemed repealed unless specifically designated in the repealing schedule of such chapter. As chapter 210 is not specifically designated in the repealing schedule, we may infer that it survived. Therefore, at the time this bridge was constructed the ordinary highway bridges of a town were expected to support a traction engine of a weight less-than five tons and any other vehicle and load Of a weight less than four tons. It is urged that the scraper trailing behind the engine was partly or entirely upon the bridge and that it is not apparent that the entire weight was not five tons or more. It is not very material for the reason that at the time of the accident the limit of the load was eight instead of five tons.

The Highway Law (Laws of 1908, chap. 330) was a consolidation of the previous laws upon the subject, and section 291 exempts a town from liability for damage caused by the fall of a bridge while a traction engine or other vehicle or load weighing eight tons or over is upon it. This section was effective February If, 1909; the bridge fell May thirty-first, 103 days thereafter. This provision of the statute was re-enacted as section 331 of chapter 25 of the Consolidated Laws (Laws of 1909, chap. 30.)

It is urged that when the State was called upon to rebuild or strengthen its numerous bridges connected with the highway system of the State, that a neglect to repair this bridge for 103 days was not a negligent act and that the State violated no duty in allowing the bridge to remain in its former condition for that length of time. I think otherwise. While undoubtedly the State had many bridges to rebuild and strengthen, it has great resources at its command and should not be permitted to shirk its duty to the public. If for any reason (none is shown) it was unable to reconstruct this bridge within the time, it clearly was able to give to the public some reasonable notice that the bridge was not able to sustain the statutory load. The intestate, without such notice, had reason to believe that the State had performed its duty and that the bridge was reasonably safe for the load which he was putting upon it, which the evidence indicates did not exeeed five tons. It cannot be said under all the circumstances that the intestate was guilty of contributory negligence which brought about or, contributed to his death. The judgment, therefore, should be reversed upon the law and the facts and a new trial granted.

All concurred.

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