Gaines v. City of New York

brings an-action in any state court of record, but not when the action is brought in. the federal court. The only point decided in that case was that a. party bringing an action in a federal court which was without jurisdiction was not entitled to the benefit of the provisions of said section; and what was said with respect to the state courts was merely by - way of argument. That decision, I think, necessarily sustains the determination of the Appellate Term on this point, for if the bringing of an action in the federal court, which was without jurisdiction of the cause of action, would not entitle the plaintiff to the benefit of said provisions, I fail to see upon what theory bringing it in a state court, which was without jurisdiction, would entitle the plaintiff to the benefit of such provisions. There is no difference in this regard between the administration of justice in a state court and in a federal court within the state; and there is no basis for attributing to the Legislature an intention to draw such a distinction.

[3] The city by its answer duly pleaded this statute of limitations, but the record does not show that it moved to dismiss the complaint upon that ground or otherwise raised the questions on the trial, and counsel for the defendant insists that, therefore, on the authority of Osgood v. Toole, 60 N. Y. 475 , the point was not available to the defendant on the appeal. The theory of the decision in Osgood v. Toole, supra, is.that, if the objection had been taken on the trial, it might have been met, and the defendant cites McKnight v. City of New York, 186 N. Y. 35 , 78 N. E. 576 , as an example of a case where the defense of the statute of limitations was met and overcome; but, as already observed, the plaintiff anticipated this defense, and evidently presented its only answer thereto by the allegations of the complaint, arid no theory is discernible upon'which the plaintiff could have met this objection by additional proof.

[4,5] There is, however, another ground upon which the determination of the Appellate Term may be sustained. The bridge was 40 fe'et wide, and was supported by three trusses, each surmounted by a steel girder 2%. feet in width, resting at each end on a granite block extending about 1 foot above the roadbed, and curving upward to a height of about 8 feet midway between the ends of the trusses. One of these trusses was at either side of the bridge and the other was in the middle, dividing the roadbed into two carriageways each about 15 feet'wide. -

It is not contended that the city was negligent in thus constructing the bridge with the girder and truss in the middle of the carriagéway, and doubtless the authorities relieving a municipality for an error in judgment 'with respect to the plan under which a local improvement is made (see Urquhart v. City of Ogdensburg, 91 N. Y. 67 , 43 Am. Rep. 91 , note; Owen v. City of New York, 141 App. Div. 217 , 221, 126 N. Y. Supp. 38 ) would exonerate the city from liability for thus constructing the-bridge. The theory of the action is that, the city having so constructed the bridge that it formed an obstruction in the middle of' the carriageway, it was its duty to light it at night in order to give notice of. the existence of the obstruction to those lawfully using the-highway. We are of opinion that in the circumstances such duty did

devolve upon the city. Corcoran v. City of New York, 188 N. Y. 131 , 80 N. E. 660 .

[6] The evidence does not show, however, that the failure of the defendant to light the bridge was the proximate cause of the accident. Although there was no light on the bridge, or street lamps lighted the immediate vicinity, the plaintiff’s chauffeur testified that if it had not been for exhaust steam, which at the time he took to be a fog, from an engine passing under the bridge, the lights of the automobile would have enabled him to see the girder or truss in time to avoid crashing into it. He testified that all the lamps on his car were lighted, and that they consisted of two gas lamps on the front and two kerosene lamps on the sides, and that they would ordinarily light up the road for a distance of about 1,000 feet ahéad; that he was going down the avenue at a speed of about 12 miles an hour looking ahead, and at a distance of about 100 feet, which he subsequently changed to 300 feet, he saw what he thought was a fog, and he slowed down to six or eight miles an hour; that he saw no bridge or girder, and that before he knew it he was “on top of the bridge”; that he discovered that what had appeared to him to be a fog was steam or exhaust from an engine going under the bridge, but that he was not familiar with the road and did not know that there were railroad tracks there; that what appeared to him to be fog was not moving but seemed to settle and remain in the same place; that he “couldn’t see the road," and that, if he had been going 200 feet more, he probably would have slowed down to about three miles an hour; that the crash came about half a minute after he “got into the area of the fog”; that the fog was so dense that he could not see “five or six feet ahead” of him, and could not see as far as the end of the radiator of his car, and could not see the radiator, which was only about 4 feet from him; that the lights of the automobile showed the fog, but did not show through it; that at the speed he was going when he saw the fog he could have stopped within 10 or 15 feet; that the fog concealed the bridge, and the lights of the automobile did not penetrate it sufficiently to show the bridge, and he did not see any evidence of a bridge or obstruction until he alighted after the collision.

In view of this evidence, it cannot be said that the failure of the city to light the bridge was the proximate cause of the accident, or that, if the bridge had been lighted, the chauffeur would have been able to see the granite block and girder, and to avoid colliding therewith.

It follows that the determination of the Appellate Term should be affirmed, with costs.

McEAUGHLIN and CLARKE, JJ., concur. SCOTT, J., concurs on the ground that the statute of limitations is a bar.

(dissenting in part). I do not concur with Mr. Justice LAUGHLIN that the statute of limitations is a bar to this action. The former action was commenced in the City Court, a court of record, and that action was finally dismissed on the ground that the

City Court had no jurisdiction in an action against the city of New York. This action was commenced within one'year after the terminartion of that action, and I think it is expressly within the provisions of section 405 of the Code of Civil Procedure. There is no exception in that section which excludes from its provisions an action brought in a court having no jurisdiction, but the section provides that “if an action is commenced within the time limited therefor * * * the plaintiff * * * may commence a new action for the same cause, after the expiration of time so limited,” and this action was brought within one year after such action was terminated. The plaintiff sought to enforce his cause of action by commencing an action in the City Court. He was mistaken in supposing that that court had power to-award him a judgment, but it seems to me that the provision of this section 405 of the Code of Civil Procedure was for the express purpose of providing for such a case, so that a person having made such a mistake should not lose his right to enforce his cause of action by reason of the statute of limitations, but should be given an opportunity to commence an action in the proper court which had jurisdiction to afford him relief.

I concur, however, with Mr. Justice LAUGHLIN on the second ground stated by him—that the failure of the city to light the approach was not the proximate cause of the accident, and therefore concur in the affirmance of the Appellate Term.