132 N.Y.S. 824 | N.Y. App. Div. | 1911
A bridge belonging to the claimant, crossing Oriskany creek in the county of Oneida, was destroyed on the 15th of February, 1908, as is claimed,, through the negligence of the defendant.
The creek at this point is about 150 feet wide and it is a stream easily affected by rains and freshets. From 150 to 200 feet below the bridge in question the Erie canal crosses the stream by aqueduct, supported by arches, the openings
By a divided court the Court of Claims dismissed the plaintiff’s claim, and from .the judgment entered thereon the plaintiff appeals.
The State was responsible for the negligence of its-superintendent, and we are of opinion that the proof showed such neglect on his part as entitled the plaintiff to recover the damages which it sustained.
It was perfectly apparent that a flood would occur if the ice in the creek broke up, as there were indications of its doing, while the ice remained in the arches of the aqueduct. There had been a partial breaking up of the ice in the stream and an ice gorge had formed only a short distance above, and residents
It is urged that it usually took from ten days to two weeks to cut away the ice' between all the arches. The superintendent could have tried to do what the time permitted. It was testified that the opening of one of the arches, would have relieved the situation and prevented the water rising as high as the bridge which was carried away. At least one arch could have been partially cleared and the water flowing through it would have worn away the remaining ice.
Nor was the flow so unusual as to relieve' the State from liability. It had placed' an artificial structure across the stream which obstructed the flow of water. Freshets were to be expected. . The" one which did the damage came earlier than usual, but the superintendent was warned of the situation and chose to do nothing. .Had there been no notice to him a different question might have been presented. The permitting of the obstruction to' the flow of water to remain after notice was the proximate cause of the injury.
It follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.