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Whatever doubts, if any may have existed since the case ofAdsit v. Brady (4 Hill, 630; followed and affirmed inRobinson v. Chamberlain, 34 N.Y., 389, and other cases), in relation to the duty of a contractor for canal repairs. Or of his liability to an individual who has sustained damages by reason of a defect in a bridge over a portion of the canal he had, prior to the legislation of 1866 and 1867, contracted
to repair or keep in repair, is disposed of by the legislation of those years. By an enactment of 1866, second volume Session Laws of that year, page 1892, chapter 836, section 9, it is made the duty of the canal board to insert in all contracts for work or repairs on the canal a clause (inserted in the defendant's contract) requiring the contractor to pay all damages arising to the State, or to any individual, by reason of the negligence, default or misconduct of such contractor in the performance of his contract; and by an enactment in the following year, second volume Session Laws, 1867, pages 1541, 1542, chapter 577, sections 3 and 4, it is declared that a contract entered into as this was "shall be held and adjudged to bind the contractor, notonly to put, but to keep, the section of the canal embraced within the contract, with all its structures, feeders, reservoirs, ditches, bridges and every other matter belonging thereto, by all needful reparations, amendments, reconstructions,
in accordance with the original plan of construction, in a good and safe condition." The act then, in substance, reserved to the canal commissioners the power of directing the contractors as to any and all precautionary measures they may consider necessary and expedient, to preserve and maintain navigation and the bridges, and prevent hindrances and delays in the passage of boats, and then made it their duty and the duty of the engineers of canal repairs, and the superintendents, to give attention to the manner in which the contractors perform their work of repairs, and requiring every engineer and superintendent when any fault or neglect of the contractor should come to his knowledge, to report the same to the commissioner in charge. These provisions, so far as they relate to the power of the canal commissioners, the engineers and superintendents, were intended as additional public safeguards to the obligation of the contractor, whose duty was substantially stated in his contract; in which his liability to respond in damages to any individual, to whom damages should accrue by reason of his failure to perform it, was quite clearly stated; hence it is that the judge at circuit did not err in
overruling the defendant's offer to prove by Vedder, the superintendent, that he ordered all repairs to be done which he considered necessary and proper. It was the business of the defendant to ascertain, at his peril, what ought to be done, not only to put, but to keep the bridge in repair. (Conroy v.Gale, 5 Lansing, 344; affirmed, 47 N.Y., 665.) The question of contributory negligence was properly left to the jury. If the witness McDonald was right, there were but eighteen horses on the bridge, weighing about 1,000 pounds each, moving steadily and in good order over it when it fell, which, if the witness Clute's estimate of the sustaining power of the bridge if it had been sound, and according to the original plan of its construction, was right, would not have yielded to the weight upon it.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.