#### Taylor *v.*Town of Constable.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

Bridges—Defects—Contributory Negligence.

In an action against a town for injuries caused by the falling of a bridge by reason of a defective stringer, it appeared that plaintiff had been employed by the bridge commissioner, about a month before the accident, to assist in repairing the *608bridge, at which time they examined it together. Afterwards, and about three weeks before the accident, a brace was replaced, whereupon the commissioner pronounced it safe, though it was then decided to replace another brace on a certain day in the following week, and the commissioner directed plaintiff, in case of his absence, to replace the brace himself; but, owing to a storm on the day set, the work was prevented, and nothing more was done up to the time of the accident. Before making the repairs, plaintiff had said that the bridge was rotten, and in danger of falling, but there was no evidence that he knew of the defective condition of the stringer. Just before the accident, many persons had crossed with loads heavier than that hauled by plaintiff when the bridge fell. *Held,*that the question of contributory negligence should have been submitted to the jury.

Appeal from circuit court, Franklin county.

Action by Herbert M. Taylor against the town of Constable for injuries sustained by the falling.of a defective bridge. . A nonsuit was granted, and plaintiff appeals.

Argued before Learned, P. J„ and Landon and Mayham, JJ. .

*Kellas & Munsill,*for appellant. *J. P. & W. P. Badger,*for respondent.

Learned, P. J.

This is an appeal from a judgment on a nonsuit at circuit. The action was brought to recover damages for injuries caused to plaintiff by reason of the fall of one df defendant’s bridges, by means of which he was thrown into the water. There was no doubt, on the proof given at the trial, of the defective condition of the bridge, of its fall, and of plaintiff’s injury. The defendant insisted that the plaintiff was guilty of contributory negligence, and upon that ground the nonsuit was granted. The plaintiff was overseer of the highways of the district in which the bridge was. There were two spans to the bridge. One only, the east, is over the river, and is the one in question. It was built with five stringers, each 54 feet long, extending over the river, on which rest the planks. The stringers were a little less than 3 feet apart, from outside to outside; the planks 12 feet long. On each of the outside stringers was a brace made of three sticks,—two slanting, and the top stick horizontal,—thus forming a truss; a rod running down where the slanting stick joined the horizontal. About a month before the accident, plaintiff and Mr. Callahan, commissioner of highways, and one Badore, met at the bridge, and examined it. Two or three weeks before the accident, they straightened up the brace on the south side of this east span, which had leaned over for a year, and decided that the north brace was so rotten that there must be a new- one. Timber was gotten for that purpose, for the horizontal beam, and one of the slanting pieces. They made an appointment for the next Tuesday to put in the north brace. The commissioner told them, if he was not there, to go to work. Tuesday it snowed and stormed so no one could work. This was two weeks before the accident. Plaintiff did nothing to the bridge up to the time of the accident. Before they repaired it, plaintiff had frequently said that the bridge was rotten, and in danger of falling. Plaintiff’s wife, four or five weeks before the accident, had cautioned him about going across. After they had repaired it, as above stated, Mr. Callahan said he thought they had fixed it so that it was safe to draw potatoes across, and to travel across. He examined the stringers, and said it was safe to cross. Plaintiff worked by the day for Callahan. Mr. Spencer drew potatoes over the bridge nearly every day after the bridge was thus repaired. He drew with a double wagon and a team. The potatoes weighed about 3,500 pounds. The plaintiff drove across the morning of the accident; then loaded a threshing separator on his wagon, weighing about 1,300 pounds. On returning with this load, the bridge broke. Mr. Presno was riding with plaintiff. He had previously driven over with a wagon and double team, and 35 bushels of potatoes. At the time of the accident, he -says, the north stringer broke first. When that went down about nine inches, the brace on the north side broke in the middle. He says people crossed on the bridge every day. *609We do not see that, as overseer, the plaintiff was bound to keep this bridge in repair. 1 Rev. St. marg. p. 503, § 6; *Bartlett*v. *Crozier,*17 Johns. 447; *Day*v. *Day,*94 N. Y. 153, at 159. The defendant urges that, by the arrangement made with the commissioner of highways, the plaintiff had agreed to repair the bridge; hence, that he cannot recover for injuries occasioned by his neglect to do so. *Sterger*v. *Van Siclen,*7 N. Y. Supp. 805; *Walker*v. *Importing Co.,*4 N. Y. Supp. 193. It appears from the evidence that plaintiff was not a contractor who had agreed with the commissioner to make these repairs. He was only an employe working by the day, and paid by the day. Tiie commissioner had agreed to meet plaintiff and Badore on Tuesday, and had told them to go on with the work if he were not there, and if the day were so that they could work. It proved to be too.stormy, and the commissioner did not come. The plaintiff had, therefore, assumed no duty. The whole duty to repair was with the commissioner.

Again, it is urged that plaintiff knew of the unsafe condition of the bridge, and was therefore negligent. It is said his wife had cautioned him. That was some three months before the accident. And she says that her remark referred to the part of the bridge where there were no guards to keep a horse from going over, if frightened; that, after the bridge was repaired, nothing was said about its being dangerous. As to plaintiff’s own knowledge, there is evidence tending to show that the beginning of the accident was the breaking of the north stringer, and that then stringer after stringer followed. It is not shown that the plaintiff knew of the rotten condition of the stringers. He says that, when he was working at the bridge with the commissioner, he saw nothing to indicate that they were unsound. It was the north brace which was to have been repaired on the appointed Tuesday; and there is evidence that, when the accident happened, this brace did not break until after the stringer had broken and sunk down. So that it might have been found that the immediate cause of the accident was the breaking of the stringer. Furthermore, there were circumstances tending to show to plaintiff that for the present it was safe to cross the bridge. After the repairing, the commissioner said to him he “thought we had fixed it so it was safe to draw potatoes across, and to travel across.” And teams drawing potatoes, 50 bushels or thereabout, had crossed thereafter from day to day. These loads of potatoes weighed about 3,500 pounds,—much more than the load which plaintiff had on his wagon. Whether, under all these circumstances, the plaintiff was negligent, was a question for the jury. In *Bullock*v. *City of New York,*99 N. Y. 654, 2 N. E. Rep. 1, where a sidewalk was known to plaintiff to be unsafe, it was held that she had a right to use it, and that the question of her negligence was for the jury. So, in *Link*v. *Brunswick,*10 N. Y. St. Rep. 642, the plaintiff’s property was injured by the fall of a bridge over which he was driving. A nonsuit for contributory negligence was held improper. The court remarked: “To say that a bridge was dangerous would not necessarily imply that there was a probability of its immediate fall. ” “Negligence is a relative term, and depends on the degree of care necessary in a given case. ” *McGuire*v. *Spence,*91 N. Y. 303, at 305. Negligence is the doing what a prudent man would not do; and, when the question is one of the negligence of the plaintiff, it is generally for the jury to decide. The argument of the defendant is that, if the defendant was negligent in not repairing, then the plaintiff had the same knowledge with the commissioner, and was therefore negligent in crossing. But we think that argument is not sound. The responsibility is with the commissioner. He must exercise his judgment, and see that the bridge is safe; and, when he leaves the bridge open for public travel, he practically asserts to the public that the bridge is safe. The traveler has a right largely to rely on this opinion of the officer intrusted with such an important duty. In the present case the plaintiff had not only this assertion of safety by the act of the commis-. *610sioner, but he had also the express statement made to him at the time of the repairing. The decay in such a structure is gradual. It continues to bear the ordinary weight of traffic till at last the decay reaches such .a point that the structure falls. It is not the duty of the commissioner to see how near to that moment of breaking he can keep up the structure. On the other hand, the traveler, who is almost under the necessity of crossing the bridge, though he may see that it is old, and shows some marks of decay, may certainly suppose that the commissioner has done his duty.

On the whole, we are of opinion that it was for the jury to decide whether, under all the circumstances, the plaintiff was negligent. Judgment reversed, new trial granted*; costs to abide event. All concur.