Sipple v. State of New YorkSipple v. State of New York
- Reporters:
- , , ,
- Before:
- Rugeb, Andrews, Rapadlo, Finch, Miller, Earl, Danforth
The evidence in support of a claim presented under said act showed that the injury complained of was caused by the opening of the paddle-gates to a lock in the night-time, between half-past twelve and two o‘clock whereby a large quantity of water was let into the lower level of the canal, which breached the bank and overflowed and damaged the claimant‘s premises. It appeared by the evidence that the lower level was but half a mile in length and was constructed upon an embankment where a breach in the bank was liable to occur and occasion great damage. It was the custom to keep lock-tenders on guard at all times during the season of navigation at the lock; on the night in question the only lock-tender on duty left the lock at midnight, leaving the
Also held (MILLER and DANFORTH, JJ., dissenting), that the award was sustainable on the ground of an omission to perform a duty required of the lock-tenders, and which the exercise of a reasonable care and prudence enjoined upon the master.
The injury happened a day before the canal was officially ordered to be closed for the season, and it was frozen over at the time. It was claimed that the lock-tenders were justified in leaving the lock unguarded on account of the proximity of the time for closing, and the unnavigable condition of the canal. It appeared that it was the custom at the close of navigation to securely lock the paddle-gates, so that they could not be opened: they were left unlocked on the night in question. Held (MILLER and DANFORTH, JJ., dissenting), that it was the duty of the lock-tenders to guard the gates until they were locked by the proper authorities.
Under the said act the State assumes obligations not only in favor of those navigating the canals, but to the public at large, to see that its canals are so constructed and managed as not to cause injury to others.
The facts are sufficiently stated in the opinions.
O‘Brien v. Cantwell, 59 Barb. 497; Nicholson v. Erie R. Co., 41 N. Y. 525; Sherman v. W. T. Co., 62 Barb. 150; Victory v. Baker, 61 N. Y. 356.; Sherman v. W. T. Co., 41 N. Y. 525.
(Laws 1870, chap. 321, § 1; Laws 1883, chap. 205, § 13.) (4 El. & Bl. 570; 4 Allen, 138.) (Limpus v. L. O. Co., 1 Hurlst. & Colt. 526;
Ruger, Ch. J. It must be conceded that the State can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming such liability. (Lewis v. The State, 96 N. Y. 71.) It is claimed by the respondent that such an assumption has been made by section 1, chapter 321, Laws of 1870. This gives authority to the board of claims “to hear and determine all claims against the State of any and all persons and corporations, for damages alleged to have been sustained by them from the canals, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals. But no award shall be made unless the facts proved shall make out a case, which would create a legal liability against the State were the same established against an individual or corporation.”
It is contended by the attorney-general that this act should be so construed as to exempt the State from any liability occurring through its management of the canals, except that arising from the negligence of some person described by law as an officer of the State. We think such a construction is uncalled for either by the letter or spirit of the statute. Its plain reading makes the negligence of a State officer but one of the alternatives upon which the liability depends. Thus the State assumes liability for damages arising from the use and management of the canals, or from the negligence or conduct of its officers having charge thereof, or from any accident
The only inquiry under it, therefore, is whether the claimant made out such a case by evidence as entitled him, if it had been proved against an individual or corporation, to have recovered against them. The proof shows that the injury occurred in consequence of the opening of the paddle-gates to lock No. 65, on the canal, between the hours of half-past twelve and two, on the night of December 5th and 6th, 1883, whereby a large quantity of water was let into the lower level of the canal, its banks were breached, and the premises of the claimant adjacent were overflowed and greatly damaged. It is not claimed by either party to this controversy that these paddles could have been opened by accident or without human agency, and the inference is unavoidable that they were intentionally or inadvertently left open either by the tender in charge of the locks or by some third persons. It is contended that the board of claims is legally bound, in the absence of affirmative evidence showing the actual offender, to find the latter to be the guilty parties by reason of the evidence of the lock-tender that he closed these paddles at half-past twelve o‘clock and did not again open them. We do not think this is so. This witness was not disinterested, and the trial court might well have regarded his evidence on that point with suspicion and incredulity. He had been charged, in a criminal prosecution, with liability for the mischief occasioned by the act in question, and although discharged from that accusation, still remained liable to a civil action for damages, and to prosecution for felony under
So far as the proof shows, he was the only person known to have had any thing to do with these paddles on the night in question; and from the shortness of time elapsing between the hour when he left the lock and the appearance of the flood in the surrounding country, it is not an unnatural or an improbable inference that the opening of the paddles was synchronous with the departure of the lock-tender.
The trial court found, “that the break was the result of want of proper care on the part of the lock-tender in charge of said lock No. 65, and in leaving said lock without any one in charge thereof.” We think the evidence authorized such a finding. It was supportable not only upon the theory suggested, but also upon the ground of an omission to perform a duty enjoined upon them by the instructions under which they were acting, and which duty the exercise of reasonable care and prudence in the management of the canals imposed upon the master. The gates in question opened into a level of only a half a mile in length constructed upon an embankment overlooking a large stretch of country, and where a breach in the bank was liable to occur, and occasion great damage. It was competent for the trial court to find that the exercise of reasonable care required a constant watch upon these levels during the period of their use for purposes of navigation, and that an omission to keep such watch was an act of negligence. The evidence showed that it was the custom of the State to keep lock-tenders on guard at all times during the season of navigation at the lock in question, to assist boats in passing through, and to regulate the height of water in the level below; that during that time, these paddles, when not raised, were pulled back and fastened with a ring or pin, but upon the
The evidence further shows that on the night in question the only lock-tender on duty, left the locks at midnight leaving the paddles unlocked and the premises unguarded. The canals had been officially ordered to be closed on the 7th of December, and they were actually frozen over at the time in question.
It is claimed by the appellant that the lock-tenders were justified in leaving the locks unguarded on account of the proximity of time for closing navigation and the unnavigable condition of the canal. Perhaps that is so, but if they had any right to act on the assumption that the canals were, in fact, closed, did not the same assumption impose upon them the duty of taking those precautions which were customary at the close of navigation? If they are to be believed, these damages occurred either in consequence of their neglect to lock the paddles, or because they neglected the duty of remaining on guard through the night and until the close of navigation. Their duty required them to guard the locks during the season of navigation, and until the paddles were locked by the proper authorities. This duty did not cease with the running of boats, but it continued so long as the presence of water in the canal required its effect upon the respective levels to be watched and provided for. This duty they violated, and to the consequences of such violation the damages are directly attributable.
Under such circumstances a master would certainly be responsible for the act of the servant. Then how can the State escape from it? As between individuals, the doctrine of respondeat superior applies where a servant who is employed to perform a duty, and while acting within the scope of his employment, performs it so carelessly and negligently that injuries occur to another. It was in this case the specific duty intrusted to the lock-tenders in question to regulate the height of water in the levels adjoining the locks, and it cannot be questioned but if they had been in the employ of an individual having
These obligations, we think, were assumed by the act in question on the part of the State toward all persons affected by its management of the canals, and should govern its liability in this case.
The award of the board of claims should be affirmed.
Miller, J. (dissenting). The claim of the respondent arises under the provisions of section 1, chapter 321 of the Laws of 1870, which section reads as follows: “Jurisdiction is hereby granted to and conferred upon the canal appraisers to hear and determine all claims against the State of any and all persons and corporations for damages alleged to have been sustained by them from the canals of the State, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals; but no award shall be made unless the facts proved shall make out a case which would create a legal liability against the State were the same established in a court of justice against an individual or corporation. * * *”
By section 13 of chapter 205 of the Laws of 1883, the board of claims have the same authority to determine claims against the State as the canal appraisers formerly had under the act of 1870. Section 1 of the act of 1870, already cited, embraces damages sustained by reason of the improper use and management of the canals, or from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any matter connected with the canals.
Negligence is evidently the foundation upon which the
The damages for which the award in this case was made arose on the night of the 5th of December, 1882, by reason of a break in the canal caused by the paddle-gates at lock No. 65 not being securely fastened so as to prevent the flow of water into the level between lock 65 and lock 64, and also by the gates at lock 64 not being opened so as to allow the water to be discharged without injuring the banks of the canal.
The first question which arises is, whether any negligence is shown on the part of the State for which it is legally liable. The court found, “That the aforesaid break in said canal was the result of the neglect and want of proper care on the part of the lock-tenders in charge of said lock No. 65, and in leaving said lock without any one in charge thereof.” The proof upon the trial showed that it was the duty of the lock-tenders to open and close the gates at proper times, and to regulate the height of the water in the adjacent level for the purpose of facilitating the passage of boats. The regulations in regard to the lock-tenders required them to be at the locks alternatively each for twelve hours out of the twenty-four, one coming on at twelve o‘clock, noon, and remaining until twelve o‘clock, midnight, when he was succeeded by the other lock-tender, there being two at each lock. The lock-tender, Van Keuren, remained at lock 65 on the night in question, until half-past twelve, midnight, that being one-half hour longer than his duty
It appears there were no boats on the canal at the time, nor had there been any for three or four days prior; that the canal was all frozen over and covered with ice three inches thick, and that boats could not pass with the canal in that condition. Notice had been given by the superintendent of public works that the canal would be formally closed on the seventh of December, and as there was no duty to be performed by the lock-tenders on the night of the fifth, there would seem to have been no necessity for their being there at that time. The evidence of Van Keuren, who was the only witness sworn as to the manner in which locks were managed, established the fact that while the canal was being operated, the gates were fastened with a ring upright over the lever; that they were left in that way the night he left the lock, fastened in the ordinary way, and it was not possible for the gates to open themselves. The proof was uncontradicted to the effect that the gates were properly secured, and, according to the findings, the paddles, or a portion of them, became open between half-past twelve o‘clock and four o‘clock in the morning, which caused the injury complained of. The testimony of the lock-tender, Van Keuren, also showed that after the canal was closed for the season, they generally came through and chained the gates down and locked them, not the gates, they usually open in locking boats, but the paddles were locked. It would thus seem that the duty of locking the paddles did not devolve upon the lock-tenders but upon other officers of the canal, and that duty was not to be performed until the final closing of the canal, which had not at that time taken place. The lock-tender had taken all proper precaution to guard against accident, and, having no further duty to perform in passing boats through, there was no necessity of his remaining there any longer, nor of the other lock-tender coming to take his place when he left. It was not, we think, negligence in the lock-tender to leave unlocked the paddles, as it was not a part of his duty to lock them, nor in his leaving the lock at the time he did after having done all in his power to secure the gates.
If there was no negligence under the provisions of the statute cited, the respondent is not entitled to damages, but even if there was negligence, we think the State is not liable for the negligent acts of a lock-tender in the employment of a State officer as it is claimed he is by the respondent‘s counsel. It is a well-settled rule that the State is not liable for the negligence or misfeasance of its agents, unless such liability has been voluntarily assumed by it by legislative enactment. (Lewis v. State, 96 N. Y. 71) A lock-tender is not an officer of the State having charge of the canals within the meaning of section 1, chapter 321, Laws of 1870, already cited. He has nothing to do with the care, management or control of the canals, and his duty merely is to attend to the locks, to the opening and closing of the same, and the passing of boats through them. He is not a State officer in any respect. He is only a day laborer employed to perform manual or mechanical labor, a mere servant or employe, and is entirely divested of any official powers or functions. He has no more authority than any other laborer on the canal who is hired by the canal officers. He is not named in the statutes of the State or included in the classification of State officers. (
The finding of the court here placed the liability of the State on the ground of want of care in the lock-tender, but as he was not a State officer no case is made out within the provisions of the section of the act cited.
The provisions of section 1 of said act in regard to the liability of the State as in the case of an individual or corporation are words of limitation and do not enlarge or restrict the operation and effect of the clauses which precede them. The responsibility here is imposed by legislative enactment and must be restricted within the limits of the same. No claim is made that the canal officers were guilty of any negligence in the employment of incompetent men as lock-tenders.
After a careful examination we are satisfied that no claim was made out against the State under the provisions of the section of the act cited.
The order and award appealed from should be reversed and the proceedings dismissed.
Andrews, Rapallo and Finch, JJ., concur with Ruger, Ch. J.; Earl and Danforth, JJ., concur with Miller, J.
Award affirmed.