11 N.Y.S. 908
N.Y. Sup. Ct.
1890
Learned, P. J.

This is an action to recover damages for injury to plaintiff, caused by her falling off a bridge which crosses the south waters of the Mohawk. The plaintiff was nоnsuited at the circuit, and appeals. The bridge was originally private property. On th'e 10th of March, 1886, the common council of the city voted that this bridge be accepted and declared open to public travel. The bridge is 30 feet wide inside, including the sidewalk, which is 5" feet wide. On the northеrly side of the bridge there had originally been a railing of three iron pipes running through posts 8 feet apart. The first pipe was a foot abovе the bridge, the second, afoot above that, and the third, a foot above the second. In March, 1887, a freshet took away the iron post at the extreme westerly end of the bridge, together with the top rail between that post and the next. There remained two rails, which, it would seem, being about 16 feet long, passed through the first post, *909which remained standing, and into the next. The west end of the upper rail of the two which remained rested on a wooden post. The plaintiff had been accustomed to cross this bridge three or four times a day for afew years. On the evening of March 15th, about 7 o’clock, she was going from the city across to the island by this bridge, and came to the westerly end. She there met three girls, and stopped to talk. While they were talking, two young men, Mort and Nolan, came from the opposite direction, and joined them. After talking a little while, the plаintiff sat down on the ‍​‌​‌‌​​​​​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​‌‌​​‌​​​​‌‌​‌‌​​‌‌​​‍top rail, near to its west end. Maria Peat sat down next to her, Mort next, and Nolan next to him. After sitting there a short time, the plaintiff got up and went in front, and spoke to Mort. She then turned, and went back to the place she started from, and put her hand on the railing. It bent around to the nоrth, and she fell into the river, with all the others. This is the account given by one witness. The plaintiff does not state that she had sat on the rail, but says that she was lеaning against it, with her hand upon it, and it sprang out, and they all fell in.

At the close of the plaintiff’s case, the defendant moved for a nonsuit on 31 grounds. The court granted the nonsuit on the ground that the defendant’s duty was limited to the erection of a railing which rendered the bridge reasonably safe for publiс passage, and for such things as are incidental to public passage, and that the plaintiff was putting it to a use for which it was not designed. The plаintiff appeals. As the plaintiff is entitled to the most favorable view, we must assume that she had not been sitting on the rail, but had been standing by it, leaning against it, аnd resting her hand thereon. The learned justice, in nonsuiting, relied upon Stickney v. Salem, 3 Allen, 374, with the similar cases of Richards v. Enfield, 13 Gray, 344; Orcutt v. Bridge Co., 53 Me. 500; Stinson v. Gardiner, 42 Me. 248; Peck v. Ellsworth, 36 Me. 393. Now, in regard to the cases in these states, it is to be noticed that the liability of tоwns is statutory; while with us, the liability is held to arise at common law. To show the difference, we may refer to Stinson v. Gardiner, ut supra, holding that where children used a part of the рublic road for play the town is not ‍​‌​‌‌​​​​​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​‌‌​​‌​​​​‌‌​‌‌​​‌‌​​‍liable for injury sustained by defects in the road. With this we may compare Kunz v. Troy, 104 N. Y. 344, 10 N. E. Rep. 442, where the city was held liable for injury tо a child playing in thestreet caused by the fall of a counter placed on the sidewalk for sale. In McGuire v. Spence, 91 N. Y. 303, this difference between the law of some other states and that of our own in respect to highways is mentioned. In that case, a child returning from school joined others in their amusement оf jumping the rope. While so engaged, she fell into an open area. It was held that the fact that she was playing, instead of simply passing along the street, did not prevent a recovery. See McGarry v. Loomis, 63 N. Y. 108. Now the doctrine which holds that the same duty of a city which exists as to travelers exists also as to a child playing in the street applies by analogy to this case. The man who, instead of walking with unresting and undeviating ‍​‌​‌‌​​​​​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​‌‌​​‌​​​​‌‌​‌‌​​‌‌​​‍step across a bridge, pauses for a moment, and rests against the railing, does not lose his right to protection against negligence, any more than does the child who plаys in the street instead of walking sedately home. In Orcutt v. Bridge Co., ut supra, the captain of a company to which plaintiff belonged called a halt upon a bridge. Plaintiff leaned his back against the railing to rest, and wait for further orders. As he sprang forward to take his place in the ranks, the rotten railing broke, аnd he fell off the bridge. It was held that it was for passengers only that the corporation was obliged to maintain the railing, and that he could not reсover; that his use of the railing was unauthorized. If that is the law of this state, the nonsuit was proper; but we think that such is not our law. The railing of the bridge should be sufficient to meet all those incidental uses to which it would reasonably be put by persons crossing. We say nothing about sitting on the rail. We speak merely of that leaning against it which is *910the common act of a person stopping a moment for any purpose on the sidewalk of a bridge. The leаrned justice excluded the idea of contributory negligence, and placed the nonsuit on the ground that the defendant was not liable, because the plaintiff was putting the railing to an unauthorized use. We cannot agree with this view. Section 24, p. 215, Laws 1872, reads as follows: “No new street on newly laid out or newly mapped lands shall be adopted, laid out, opened, and worked or graded in said city, by said common council, unless the same shall be sixty feet wide, and said common council shall have no power to order the same opened, laid out, worked, or graded, nor to accept any such street or highway, or dedication of any such street or highway, hereafter dedicated, unless the same shall be of thе width of sixty feet. ”

The defendant urges further that by statute the streets of the city must be 60 feet wide, and that this bridge is only 30, and therefore the city had no right to acсept it. Evidently the statute ‍​‌​‌‌​​​​​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​‌‌​​‌​​​​‌‌​‌‌​​‌‌​​‍cited refers, not to “bridges,” but to “streets and highways, ” strictly so called, because it speaks of opening, working, laying out, and grading,—expressions not applied to bridges.

The defendant further urges that defendant had no right to construct or keep a bridge over this branch of thе Mohawk, and would have been a trespasser in going on the bridge to make repairs. This contention rests on the cases of Carpenter v. Cohoes, 81 N. Y. 21, and Veeder v. Village of Little Falls, 100 N. Y. 343, 3 N. E. Rep. 306. But these аre quite different from this. There it was held that the city was not bound to go upon an approach to a bridge, and put a railing thereon, where the approach and the bridge were state property. Now, in this case, Adams built this bridge in 1876 from an island owned by him to vacant land on the west side of the south branch of the Mohawk. He sold building lots on his island, and houses were built thereon. People used the bridge in crossing from his island to the other part of thе city. The bridge was within the city limits. In 1886, as above stated, the common council passed a vote accepting this bridge, and declaring it open tо public travel. After the freshet of 1887, above mentioned, the street superintendent repaired the bridge, putting in new floor timbers. His attention was then called to this defective railing. Whether the state might not cause this bridge to be removed, we need not say. It had been allowed to remain some 12 years, and had been used by the public during that time. The case comes within that of Sewell v. City of Cohoes, 75 N. Y. 45. Judgment reversed, new trial granted, ‍​‌​‌‌​​​​​‌​‌‌​‌‌‌‌‌‌​‌​​​‌​‌‌​​‌​​​​‌‌​‌‌​​‌‌​​‍costs to abide the event. All concur.