108 N.Y. 166 | NY | 1888
The board of claims awarded the plaintiff $1,500 as damages for the death of her husband resulting from the negligence of the state. The attorney general has appealed from that decision. Under the acts regulating such appeals, as amended, only questions of law are open to our consideration, except that we may pass upon the insufficiency or excess of the damages awarded. No complaint is made in the present case that they exceeded a just amount, and so we are concerned only with such questions of law as are raised in the case. (Laws of 1884, chap. 60, § 6; Laws of 1887, chap. 507, § 1.)
The appellant argues, first, that the state was not negligent and the decedent was, or at least was not shown to have been free from negligence contributing to the injury. That is of course a question of fact, and can only become a question of law when no evidence given fairly tends to establish the controverted fact. That cannot be said in the present case. There was proof tending to show that the decedent in crossing a bridge over the canal fell through a broken or *168 defective railing into the water and was drowned; that the defect was obvious and had existed for a considerable time and was known to the officers in charge who often tied up the broken rail, sometimes with twine and sometimes with wire. An inference that the decedent was free from negligence on his own part was also possible from the facts proved, and while on both branches of the plaintiff's case there was ground for debate, and even perhaps for difference of opinion, we cannot hold as matter of law that she failed to establish a cause of action.
The learned attorney general, however, raises another question. He insists that the plaintiff had no cause of action against the state, because the special statute giving to the administratrix such right omits to include actions against the state. (Code of Civ. Pro., § 1902.) That section provides that "the executor or administrator of a decedent who has left him or her surviving a husband, wife or next of kin may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused against a natural person, who or a corporation, which would have been liable to an action in favor of the decedent if death had not ensued." The appellant argued that the right of action here given is only against an individual or corporation, and since the state can only be sued by its consent (Rexford v. The State,
The award should be affirmed, with costs.
All concur.
Award affirmed.
