Hayes v. New York Central & Hudson River Railroad

Per Gwriam: The defendants raise no question on the appeal except as to then-liability to plaintiff for defects in the road. The bridge (as it is called) was built under a permission given to the defendants “ to construct and maintain a bridge over the cross [67] ing at "West Albany.” This permission, acted upon, implies an obligation to maintain. In some cases where persons have constructed bridges for public use, and the public has practically accepted and used them, it has been held that the public (usually the county) was bound to maintain them. (Rex v. Kent, 2 M. & S., 513; Rex v. Oxfordshire, 4 B. & C., 194; Rex v. West Riding, 5 Bur., 2594.) In this last case however a distinction was noted of a bridge made for the private benefit of him who erected it, citing 1 Eolle’s Abridgement, 368. In the present case the bridge, while a convenience to the public, is also an advantage to the defendants, a saving of expense, risk and interruption. The case is similar therefore to those of Rex v. Kent (13 East, 220) and Rex v. Lindsey (14 id., 317). There canal companies which had been authorized to amend and alter such bridges as might hinder navigation, and had erected bridges over fords in the highway, were held liable to keep such bridges in repair. “ When the company,” said Lord ElleNbobough, “ thought proper for their own benefit to alter the highway in the bed of the river, so that the public could no longer have the same benefit of the ford, they were bound to give another passage over the bridge and to keep it for the public.” But the defendants insist that the approaches are no part of the bridge, and that their obligation (if any) does not extend to the approaches. The approaches, say they, are only a part of the highway on a new slope. But the approaches are a necessary part of the bridge. Could the defendants have been permitted to erect a bridge several feet above the highway, and to construct no means of reaching it ? In obtaining permission to build the bridge, and in building it, they must have undertaken to make it accessible- — not to block up the highway with a useless structure. What they undertook to construct they should maintain in repair. The defendants cite New Haven v. N. Y. and N. H. Railroad Co. (39 Conn., 128) to show that approaches are not part of a bridge. But the court there say that they decide the case on a section of the city charter. They admit that a bridge may in certain connections include embankments and approaches. And of bridges and their [68] approaches over railroads they remark that they “ should, on principles of natural justice, be built and maintained by the railroad companies.” And that same court, in Burrett v. N. H. (42 Conn., 174), speaks of an embankment as a part of the bridge. (See also, Sussex v. Strader, 18 N. J., 113; Watson v. Lisbon Bridge, 14 Maine, 204.) We think, therefore, that the defendants were bound to maintain the approaches as well as the bridge, in the strict sense of the word. It is further suggested by the defendants that, even if they are liable to maintain the substructure of the approaches, yet that the surface of the roadway, the superstructure (so to call it) should be kept in order by the commissioners of highways; as they would have been obliged to keep it in order before the slope was raised. In the case of North Staff. R. W. v. Dale (8 Ellis & Black., 836), a railway company having carried a road over the railway by a bridge, was held bound to keep both bridge and road and the approaches thereto in repair ; and such repair was held to include not only the structure of the bridge and the approaches, but the metaling of the road on both. It is true that the statute in that case mentioned approaches. But the case shows that the obligation to keep in repair includes the surface, or roadway, and not merely the superstructure, or support. We think that the judgment should be affirmed, with costs. Present — Learned, P. J., Booees, and BoardmaN, JJ. Judgment and order affirmed, with costs.