Fitzpatrick v. . Slocum

Earl, J. This action was brought against the defendants to recover damages sustained by the plaintiff in consequence of injuries received by her at the Union street draw-bridge in the city of Brooklyn. The bridge was constructed upon Union street across the Growanus canal by commissioners appointed under the act, chapter 826 of the Laws of 1866. The commissioners appointed by that act were required to grade, pave and improve Union street according to a plan to be adopted by them, a part of which plan, was a draw-bridge over the canal; and it was provided that after they had completed the improvements they should make a report to the common council of the city with a map and profile of the street as laid out and established by them, which were to be filed in the office of the street commissioner of the city, and that thereupon the street should be a public street and highway of the city and deemed to have been transferred to the common council and subject to its control in the same manner as other streets and avenues of the city. Under that act the street was improved and the bridge constructed and the report was made and filed as required, and thus the street and the bridge were transferred to the city. It is provided in section 62 of title 11, chapter 863 of the Laws of 1873, that “ The board of police shall appoint suitable persons as keepers of all bridges in the city of Brooklyn who shall perform all the duties and be subject to the regulations and ordinances of the common council. The said persons so appointed shall be under the direction and control of the board of police and excise and may be superseded at any time by the said board,” The bridge was built in 1866. It was about one hundred feet long and thirty feet in width, having two carriage-ways *362 and two foot-paths. Under the center was a pier upon which the ■ bridge revolved. ■ When it was swung open to- allow a vessel to pass it stood at right angles with the street, parallel with the canal, leaving nothing to protect persons in the street which leads off-directly into the water. There were no barriers of any description upon the street or sidewalk. The bridge and street were in the same condition as they were when transferred to the city upon the completion thereof by the commissioners appointed under the act of 1866. The plaintiff, an infant, resided with her parents two doors from Union street and one block from the bridge. On the 10th of May, 1877, she left her home and started down Union street to look for her brother, a child four years old. When she discovered him he was going toward the bridge which was being swung to let a vessel pass. She followed and overtook him just as he was about to get on the bridge and she caught hold of him as he was stepping on and in doing so her foot slipped in between the sidewalk and the bridge and she sustained very serious injuries. Previous to this accident the keeper who was in charge of the bridge gave notice to the assistant engineer attached to the board of city works that the place was dangerous and unsafe and that two accidents had already occurred there. This notice was given at least six months before the plaintiff was injured. The defendants were sought to be held liable because they were commissioners of the department of city works, under title 14 of chapter 863 of the Laws of 1873. By section 1 of that title it is provided that the commissioners shall have charge and control, subject to the direction of the common council, of opening, altering, regulating, grading, regrading, curbing, guttering and lighting streets, avenues, places and roads, flagging sidewalks and laying crosswalks, of paving and repaving and cleaning streets, avenues and places, and keeping the same clear of encroachments, obstructions and incumbrances ; of the construction, altering and repairing of public structures, buildings and offices and all other public works under the care of the department; and it is further provided *363 that they shall have an annual salary. The claim on the part of the plaintiff is that, by virtue of the powers thus conferred upon the commissioners, they were responsible for the safe condition of the streets and bridges of the city. At the time of the accident the bridge was actually in charge of one keeper appointed by the police commissioners. The defendants were ministerial officers, and before they can be made liable to any individual for damages caused by an alleged nonfeasance, the proof must show that they omitted to discharge a plain duty which the law devolved upon them. Assuming that they could be made liable for damages sustained by an individual by reason of defects negligently left or suffered to exist in any of the streets or bridges of the city, here Union street was in no sense out of repair. As a street for public travel it was in perfect condition, and the bridge over the canal was not defective, but was in all respects suitable for the purpose for- which it was constructed. The street and bridge were completed by the commissioners appointed to construct them, and they were in as good condition at the time of the accident as when they were turned over to the city and to the charge of the commissioners of city works. The danger to which the plaintiff was exposed was caused by operating the bridge by the keeper appointed by the police commissioners. When the bridge was closed it was perfectly safe. When open children and other imprudent persons might walk from the street into the canal; but that was because the draw was opened by the keeper who was not under the control of the defendants. It is not plain from the facts appearing in this case precisely what the duties of the keeper of such a bridge are. They must depend somewhat upon the structure of the bridge and its appurtenances. He may be simply required to operate the bridge, or the duty may also rest upon him to guard the approaches when the draw is open. If the latter duty rested upon the keeper of this bridge, then the police commissioners should have appointed a sufficient number of keepers, if one was not sufficient, to properly discharge that duty. It is said that the defendants ought to have built barriers at *364 both ends of the bridge which could have been closed when the draw was open; but who could be there to open and close them? The barriers would be of no use without some persons in charge of them, to open them when the draw was closed, and to close them when the draw was open, and I do not find any thing in the statute which made it the duty of these commissioners, or which gave them the power to appoint keepers of any barriers which they might erect. And again if it was requisite to have keepers of barriers, then the barriers' were unnecessary and it would have been sufficient to have stationed a person, at each end of the bridge to watch and take care when the draw was open. If there had been a sufficient number of keepers of the bridge the bridge could have been sufficiently guarded so that no accident of the kind which occurred to the plaintiff could have happened. But I am of the opinion that the defendants are not guilty of nonfeasance for not appointing such keepers. The power to appoint them was conferred upon another department of the city. I can, therefore, find no ground based upon statutes so far referred to for imposing responsibility for this accident upon the defendants. It is claimed also on behalf of the plaintiff that the defendants are liable to her in consequence of a duty imposed upon them by section 31 of chapter 589 of the Laws of 1874, which provides that “ in case any street, public building, highway, sidewalk, crosswalk or bridge shall become dangerous, the commissioners of the city works shall examine the same, and with the approval of the mayor shall cause the same to be repaired or removed, provided that the expense of such repair or removal shall not exceed in amount the sum of $1,000 in any one case, and to meet such expenses the comptroller shall issue certificates of indebtedness, the payment of which shall be provided for in the next annual budget.” Here the street did not become dangerous, and the bridge was not dangerous. It was operating the bridge that made it dangerous, and' that section plainly had reference to no such occurrence. There was nothing in this *365 street to repair or remove; the street and the bridge were in perfect repair, and all that was needed to guard against every danger was that the draw should be operated with proper care and vigilance and the bridge kept guarded when the draw was open. The claim is made on the part of the plaintiff that if these defendants are not liable to her then she has no remedy for the injuries which she has sustained, and our attention is called to section 27 of title 19 of chapter 863 of the Laws of 1873, which provides that “the city of Brooklyn shall not be liable in damages for any misfeasance or nonfeasance of the common council or any officer of the city or appointee of the common council, of any duty imposed upon them, or any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any provision of this act, but the remedy of the party or parties aggrieved for any such misfeasance or nonfeasance shall be by mcmdamus or other proceeding or action to compel the performance of the duty, or by other action against the members of the common council, officers or appointee, as the rights of such party or parties may by law admit, if at all.” Under this section it is said that no liability in a case like this can be enforced against the city, and that the only remedy for the party injured is against some one or more of the city officers. We are of opinion that the exemption created by this section is not so broad as claimed. There must be a remedy in such a case, where one is injured without fault of his own by a defect in one of the streets or bridges of the city, either against the city or some one of its officers. The primary duty to keep its streets and bridges in safe condition rests upon the city, and there is a general obligation upon it to use proper care and vigilance in putting and keeping its streets and bridges in such condition, and unless that duty has been plainly devolved upon some officer or officers of the city against whom a remedy for nonfeasance can be had, the remedy is against the city upon its obligation. That section does not exempt the city from liability to discharge a duty resting upon it and which it has not devolved *366 upon any one of its officers. If the commissioners of city works are not liable, as we hold they are not, and if there is no remedy against the police commissioners, for not appointing and keeping at this bridge sufficient keepers (and we are also inclined to think a remedy against them would fail), then the remedy is against the city upon its primary obligation to keep its streets and bridges in a safe condition, and for not guarding this bridge sufficiently when it was operated for public use. ' The views here expressed are not in conflict with any thing decided in the case of Gray v. The City of Brooklyn (2 Abb. Ct. App.Dec.261). It does not appear very clearly upon what ground that case was decided. It was a sufficient defense to the action that there was no negligence proven which was chargeable to the city; but if more than that was decided in order to exempt the city from liability, it was merely that where a plain duty was devolved upon certain officers, any one injured by a nonperformance or imperfect performance of that duty should take his remedy' against the officers and not against the city. It was not decided that where an absolute duty rests upon the city one who suffers injury from non-performance of that duty cannot, in any case, have his remedy against the city. We have therefore reached the conclusion, not without doubt and hesitation, that the nonsuit was properly granted, and that the judgment should be affirmed, with costs.