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Murphy v. Suburban Rapid Transit Co.

60 N.Y. Super. Ct. 9 28 Jones & S. 9 Court N.Y. Super. Ct. Decision date 1891-10-10 English

Contents

Majority

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MARY MURPHY, Respondent v. THE SUBURBAN RAPID TRANSIT COMPANY, Appellant.

Headnote

Action for damages for an injury sustained by plaintiff for which she claimed the defendant was liable.
In March, 1882, the defendant obtained permission from the city of New York, to construct a bridge across the Harlem River for its trains, etc., on condition that defendant should keep and maintain a footway thereon with necessary and convenient stairways and approaches thereto from the street at either end. After the construction of said bridge, stairways and approaches, defendant took charge of and kept the platform approaches to the stairways. Plaintiff, in December, 1888, crossed over the bridge from north to south, and had just reached the foot of the west stairway to the street, when her foot caught in a projecting board in the platform approach, that caused her to fall with the result of severe injury. This projecting board in the platform had been left in this dangerous condition for thirty days previous to the accident. The facts relating to the accident, and the serious character of the injury to plaintiff, were not disputed, and the question of contributory negligence was fairly presented to the jury, who found in favor of plaintiff.
Held, that defendant undertook to construct and maintain the bridge with suitable and necessary approaches thereto, and was bound to keep the same in complete order. Both principle and authority imposed upon the defendant the obligation of keeping the same in repair. The approaches were as necessary as the bridge itself. This defective condition of the platform approach rendered a part of the street unsafe for the ordinary purposes of travel, and constituted a nuisance. The responsibility for the repair and maintenance of the platform approach in a safe condition rested upon the defendant. There was no evidence tending to show that any other person or organization than the defendant was responsible for the condition of the plank at the time the plaintiff stumbled upon the same and fell. The instructions of the learned trial judge to the jury in this respect were correct and are sustained. The obligation of the defendant to the public in the premises was not kept, and any special damage arising from the failure of defendant in this respect, furnishes ground for a private action without regard to the question of negligence on the part of the defendant. The defendant was liable to the plaintiff in damages for the injury sustained by her, unless her own negligence contributed thereto. The question of contributory negligence was correctly submitted to the jury, and the conclusion in favor of plaintiff was fully justified by the evidence.
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Before Freedman, Dugro and Gildersleeve, JJ.
Decided October 10, 1891.
Appeal from a judgment in favor of plaintiff and against defendant, entered upon the verdict of a jury, for five thousand dollars, for injuries sustained by plaintiff, and from an order denying a motion for a new trial.
James R. Marvin, for appellant, argued :—
I. The plank platform where plaintiff received her injury was the plank covering of a public dock owned by the city of New York, and was located at the northerly end of, and within the lines of Second avenue at the Harlem River. Second avenue at the time of the injury had been opened by a proper legal proceeding, and at that point was one of the public streets of the city of New York. This dock was under the exclusive control of the dock department. That department had exclusive charge and control of the repairing, building, rebuilding, maintaining, altering, strengthening, leasing and protecting said property ” (all wharf property), “ and every part thereof, and of all the cleaning, dredgingand deepening necessary about the same” (Consolidation Act, § 711). The department of public parks by § 671 of that act was given “ exclusive power to devise plans for and locate all bridges and tunnels ” in the Twenty-third and Twenty-fourth Wards. It was granted “ exclusive right to construct all bridges ” within that territory. By § 675 of that act it is made the “ duty of the department of public parks to devise and prepare plans for the improvement of the navigation of the Harlem river and Spuyten Duyvil creek, the plan and location of all bridges, tunnels and other means of transit across or under said river and creek ; and plans, locations and grades, so far as the said board may deem practi
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cable, of all railroads and similar modes of communication and transportation to be operated by steam or other power that may hereafter be authorized by law, to be constructed within, through, or in connection with said area, and plans and location of new piers and bulkhead lines and the grades thereof on both sides of the Harlem river,” etc. Section 676 of that act gave that department “ full power and authority to build and construct, by contract or otherwise, as they shall deem most expedient, any and all bridges, etc., across Harlem river,” etc. That section also makes provision for the height of bridges and requires that “ the number and size of the bridge piers within the improved channel shall first be approved by the Engineer of the United States in charge.” Permission for the construction of defendant’s bridge was given by both of those departments. Plans for the construction of the bridge were prepared and were approved by those departments and by General Newton, the United States Engineer in charge of the Harlem river improvement. The resolution of the department of parks giving its consent to the construction of the bridge is found in plaintiff’s exhibit 3a, p. 129. That is an etc., of the first part, with defendant, party of the second part, for the construction of the bridge by defendant. The agreement witnesseth: “ That the said parties of the first part, in consideration of the covenants and conditions herein contained on the part of the party of the second part, and in order to promote a means of communication or transit across Harlem river for pedestrians, and also by means of a railroad to be operated by steam power in said city of New York, do hereby consent to the erection, and carrying on of the erection, by the Suburban Rapid Transit Company, and at its own expense, of a railroad and foot-bridge across the Harlem river, at the location-in said resolution prescribed.” In consideration whereof the Suburban Rapid Transit
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Company agreed to commence the bridge within four months ; that the bridge should be a railroad bridge for cars, etc., “ and with ways for foot passengers, one on each side.” * * * “ The roadways for foot passengers shall be not less than six feet in width in the clear, guarded with iron railing on each side, and connected with the street by proper steps and approaches of iron on each side, which shall be roofed over, and at all times open free to the public.” By the third clause of the agreement defendant agreed that it would “ maintain said bridge and its footways and the approaches and stairways and roof in complete order, and said footways and the approaches and stairways except when the draw is necessarily open, shall be open for the free use of all persons desiring to pass and repass over the same on foot. “ Fourth.—That the use of said footways by the public, shall be under such rules, regulations, requirements and ordinances as have been now prescribed or which may hereafter be prescribed by said department.” By the sixth clause the department was authorized to appoint one inspector of the bridge to be paid by the department.
BE. It is claimed by the plaintiff that the dock platform on which plaintiff fell, was one of the “ approaches ” to the bridge which defendant agreed to construct and maintain, and that defendant was guilty of negligence in suffering this platform to get out of order. But a reference to the agreement will show that the approaches therein mentioned, were to be constructed of iron and roofed over. There is an elevated approach to the northerly end of the bridge extending from the bridge to the stairway at Lincoln avenue. This is constructed of iron. This and the stairways are the approaches meant by the agreement.
III. It is clear from the agreement itself that the department of parks, as a condition for its consent to the construction of a railroad bridge for defendant’s use,
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required the defendant to construct the footways and stairways for the city’s sole use, free of charge, and over which it reserved absolute control, and it has always exercised that control. The department of parks lights the footways and stairways, and has adopted and put up on the footways rules and regulations for their use. In other words, the defendant made a contract with the city to build for its sole use and control a foot-bridge for foot-passengers to the manifest disadvantage of the defendant, in the diversion of passengers from its cars, and in the greatly increased cost of the bridge. The city must be deemed the beneficial owner of the foot-ways and stairways. The department of parks, by Section 676 of the Consolidation Act, was authorized to build bridges over the Harlem river by contract, and in point of fact that department under that authority made a contract with defendant to build a foot-bridge for the city just as effectually and just as much within the spirit of that act as if it had made an agreement with defendant to build an independent foot-bridge over that river for the city’s use, and the same rule of law as regards liability for damages sustained by third parties as between owner and contractor applies. The park department had accepted the stairways and footways, and had taken complete control over them sixteen months before plaintiff was injured.
IV. The platform of the dock was no part of the bridge structure. It is true that in constructing a pier for the stairway to rest on defendant necessarily cut a hole through the planking and completely filled the space cut out with a concrete pier, and left the plank in good and safe condition, closely hugging the pier. The cutting of the planking may be considered a part of the construction of the bridge. If the hole cut in the planking had been left unguarded while the work of construction was going on, and plaintiff had fallen into it and been injured, defendant would not have been liable
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to her. But, however that may be, certainly, after the work of construction had been completed and the city had taken control of the stairways and footways, all liability on the part of defendant for injuries to third parties ceased, as the city was the owner of the dock and the plank by which plaintiff was injured and the soil underneath it. The city had required the stairway to be built for its sole use, and the stairway cordd not have been built without the construction of the pier, and that could not be built without cutting a hole through the planking. After the completion of the work and its acceptance by the city, the city only was liable for injuries happening to third parties, as the cutting of the hole in the planks was not injurious to health or dangerous to life. Cases cited in Thomas v. Winchester, 6 N. Y., 408 ; Losee v. Clute, 51 Ib., 494; Loop v. Litchfield, 42 Ib., 351.
V. Plaintiff’s counsel in his brief at trial term says that “ the ground upon which this action is put is that the defendant maintained a nuisance.” The cases cited by him, among which are Congreve v. Smith, 18 N. Y., 83 ; Clifford v. Dam, 81 Ib., 52; Dygert v. Schenck, 23 Wend., 446 , in support of that proposition, are all cases where the defendant made excavations or openings in the street without authority and solely for his private convenience and not for the public use. Those cases are clearly distinguishable from this (Kelly v. Dooley, 116 N. Y., 581 ). In the first place, the stairway and footway were constructed by the defendant for a public use by the people of the city, and not for the use of defendant at all. In the second place, the work done by the defendant was required to be done by one of the departments of the city, for the city’s benefit. Also in those cases the surface of the street was excavated or raised at the exact point where the plaintiffs therein were injured. In this case the ground under the plank that became loose had not been disturbed. The plank
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ing was left in good order when the work was completed. It got out of order not from any act of defendant, but from deterioration by action of the elements, or from the continual passing over it of thousands of people for a year or more.
VI. Had there been no evidence in the case proving that defendant left the planking -in good condition it could not be inferred that the plank was left in bad condition from the fact that more than two years afterward the plank became loose at the end. It had been subjected to the travel of thousands of people for over a year. The plank was not under cover, and was therefore exposed to the action of the sun’s rays, rain and snow, thawing and freezing, all of which were sufficient to account for the plank becoming loose. There not only was no proof that the work had been improperly done, but there was no proof that the plank became loose through any act of defendant.
VII. As the dock was the property of the city and the dock department was bound to maintain it, defendant would be a trespasser if it attempted to maintain the planking. The city cannot be relieved of its responsibility for the care of its .streets and docks by any act of an individual who may assume to repair them.
VHI. Inasmuch as the work of constructing the pier and the consequent cutting of the planking was done under the authority of law, and in the absence of any contractual relations with the city, defendant is not liable to maintain the planking, and could only be liable to third parties because of negligence in doing the work while in progress, if at all. In Kelly v. Dooley, 116 N. Y., 575 , plaintiff was injured by falling into an excavation in the street, made for mailing a water connection. The excavation was made under a permit from the public authorities. The court says : “ In this case the excavation was permitted by the public authorities, and the party making or maintaining the obstruction
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only becomes liable for his negligence in the use of the privilege.” In Eagan v. Forty-second St. R. R. Co., 4 N. Y. Sup., 530, where plaintiff was injured by stepping into a hole between the rails of the railroad track owned and controlled by defendant, but it was not shown that the construction or maintenance of the tracks was defective, nor that the defendant was within any statute making it the duty of street railroads to keep the space between the tracks in repair, it was held that the complaint was properly dismissed. The court says that it did not appear that it was defendant’s duty to keep the space between the rails in repair. “ The city and not the defendant had control of this space. The defendant could not, without the city’s permission, exercise any precaution it might deem necessary to prevent the existence of holes in the street, and in the absence of any agreement between it and the city in regard to the matter, or any special duty imposed by law, it should not be held bound to keep the space in question in repair ; no defect in the construction or maintenance of the track is shown. In Silberstein v. Houston, etc., R. R., 117 N. Y., 293 , plaintiff slipped on the ice between, the rails and was run over by a car. The court says (p. 296): The idea (of plaintiff) seemingly was that a duty rested upon the defendant to keep the space between its tracks free from ice and snow. Of course, no such duty rested upon it, and no such liability for a failure to do so, as was claimed in this case, would follow.” City of Buffalo v. Holloway, 7 N. Y., 497 .
IX. A person is not liable “ for negligence in the performance of any work, unless his negligence was in violation of a contract express or implied, or of a duty which was imposed on him by law.” Mayor of Albany v. Cunliff, 2 N. Y., 173 . In that case (fol. 169) the court says: “ The rule seems to be well settled, that to charge a person in an action on the case, for negligence in the performance of any public work whereby any per
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son has sustained any special damage, ‘the law must have imposed a duty on him so as to make that neglect culpable’ [Esp. N. P., Tit., Trespass, on the Case, 365), and if the bridge in question was a public bridge, the reason why plaintiff could not sustain an action against William Van Zandt for having built it in a negligent and improper manner, is that he could not allege or prove that it was Mr. Van Zandt’s duty to build it.” Judge Cady in that case puts the case of a traveler who built a bridge over a stream as a means of passing his team over it, and shortly after another traveler comes along and attempts to cross the bridge and it falls under him, and his horses are drowned, and says (page 170): “ Has he a remedy against the man who built the bridge ? Why not ? Because the law had imposed on him no duty to build it, and so I apprehend the law to be in relation to the defendants. If the law had imposed upon them no obligation to construct the bridge they must be regarded as mere volunteers, and in no way responsible to the plaintiff for what they did, or for what they neglected to do.”
X. The plaintiff’s cause of action is against the city. She has no cause of action against the defendant. The city was charged with the maintenance of the dock planking. Even owners of adjoining lots in the city of New York are not under any obligation to keep the sidewalk in repair. There is no statute imposing such duty on any one but the city. No ordinance has been introduced in evidence on the subject. I know of no ordinance of the city which creates any liability of defendant to plaintiff. I understand that the law is well l and decisively settled that the remedy of a person in-1 jured in consequence of a street or sidewalk being out of i repair is against the city only, by the case of City of Rochester v. Campbell, 123 N. Y., 405 .
Thomas P. Wickes, for respondent, argued:
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I. The condition of the platform-approach which was the cause of the plaintiff’s injury constituted a nuisance. Wood on Nuisances, § 20, defines a nuisance on a roadway as follows: “Anything that can produce a nuisance, that extends over a highway, street or other public place, where people pass and repass, and have a lawful right to be or congregate, and produces material annoyance, inconvenience, discomfort and injury to those exercising those rights, is a public nuisance.” The facts in this case establish without contradiction that the plank platform-approach in question was a part of the pier or dock at the foot of One Hundred and Twenty-ninth street, and that at the place of the accident it formed a part of the public highway; that, in the platform-approach leading up to and immediately adjoining the foot of the stairway of the defendant’s bridge there was a loose and tilting plank which projected two, three, or four inches above the adjoining planks. It projected so high that one could place his fingers underneath it. It could be pressed up and down, and was sprung at one end. It was loose and would work up an inch or two; two or three of the planks immediately adjoining were also loose and tilting the same way. “ It would stick up, and as soon as you stepped off this plank, it would go up.” The planks had originally extended to the curb of Second avenue, but had been cut off by the defendant’s company to put in a pier for the west stairway of the bridge. No authorization for such cutting granted by the municipality was shown by the defendant. The planks had been continually in an unsafe condition, and repaired by the company’s servants. The stairways were open in August, 1887. (a.) Previously to that, the company had taken up these planks and placed them nearer together, and inserted another plank or planks. (5.) A short time after the opening of the bridge, one of these planks became loose and stuck up, and the company repaired it. (c.) “In the latter part of 1887, or the first part of
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1888,” one of these planks was spiked down, [d.) Two months before this accident, the plank which caused the accident was loose and had sprung up, and shortly after the accident and in the spring of 1889, the company repaired it, and certain others of the planks at that point, which were also loose. “ Any unauthorized obstruction which unnecessarily incommodes or impedes the lawful use of a highway is a public nuisance.” Thompson on Highways, 274. “ To permit it (a highway), to remain out of repair, is a public nuisance.” Sherm. & Redf, on Neg., § 332. Every element required by the above definitions, in order to constitute a nuisance, is present in the case at bar. The tilting plank was on a dock or pier forming a part of a highway, over which people passed and repassed; it unnecessarily incommoded the public and caused annoyance and injury; it had remained unrepaired for some time and was a continuous menace to the public safety. The adjudicated cases also confirm this view that such a condition of affairs constitute a nuisance. In Ahern v. Steele, 48 Hun, 519 , affirmed in 115 N. Y., 203 , Judge Van Brunt held under similar facts, “ The wharf was open to the public, it is treated as a public street, and when it becomes out of repair, it is a public nuisance.” The case of Swords v. Edgar, 50 N. Y., 34 , held that neglect of this duty, the suffering the pier to become dangerous to those lawfully coming up, is the “ creation of a nuisance.” Dygert v. Schenk, 23 Wend., 446 , held where an accident happened through a defective plank in a bridge across a ditch, that “ the moment the plank became hable to slide from the bridge, or any other serious difference arose against its safety as compared with the original unbroken ground, the ditch took the character of a nuisance.” Oshkosh v. M. & L. W. R. Co., 74 Wisc., 534, held that “the acts of the railroad company constitute a nuisance, for it has no authority to use the street for its roadbed, without restoring it to its former condition.”
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Radway v. Briggs, 37 N. Y., 258 ; Rex v. Russell, 6 East, 427. Wood on Nuisances, 1st ed., states at § 319, “it may be regarded as well settled that a highway or bridge that from any cause is rendered unsafe for the ordinary purposes of public travel is indictable as a nuisance,” and again in § 324: “ It may be stated as a general proposition that any defect that impairs the safety of the highway for purposes of travel, or essentially interferes with its convenient use, is an indictable and actionable nuisance at common law.” And even if the original construction by any chance be considered as authorized, the subsequent lack of repair made it a nuisance. The general rule is well stated in Irvine v. Wood, 51 N. Y., 224 ; in this case there was no evidence that the coal-hole was authorized; the court said—“It may then b.e treated as a nuisance being an unauthorized excavation in the street,” and the case further held that even were the excavation authorized it must be kept properly and carefully covered “ so as not to be perilous to travelers upon the street,” or it would become a nuisance. In Woram v. Noble, 41 Hun, 398 , where a coal-hole was constructed, a cover put on, and the sidewalk restored to a safe condition, but subsequently the stone on one side of the cover sank, allowing the cover to tilt, it was held that the coal-hole became a nuisance immediately upon the subsidence of the stone forming the bed of the cover. Congreve v. Smith, 18 N. Y., 79 ; Creed v. Hartman, 29 Ib., 591; Cosgrove v. Morgan, 18 Ib., 84; Mairs v. Man. R. E. Association, 89 Ib., 503; Clifford v. Dam, 81 Ib., 56; Callanan v. Gilman, 107 Ib., 360; Wolf v. Kilpatrick, 101 Ib., 146.
II. The defendant, the Suburban Rapid Transit Company, having created this nuisance without special authority, is liable, irrespective of the question of control of the platform approach. No authorization by the dock department or any other municipal officer was shown. It must also be remembered that over this platform the
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park department had no authority, its jurisdiction being confined to the Twenty-third and Twenty-fourth Wards. Consolidation Act, §§ 670, 671. The circumstances in the case at bar are very much like those which appear in the case of Dygert v. Schenck (1840) reported in the 23d of Wendel, p. 446. In this case it appeared that the defendant in the year 1826 dug a race-way across a public road to conduct water to his mill, and built a bridge across such race-way which ever since had been used by the public as a part of thé road. In 1837 a horse belonging to. the plaintiff fell through the bridge, in consequence of one of the planks composing the flooring of the bridge being loose, and received great injury. The plaintiff was nonsuited below, but this judgment was reversed, the court holding, among other things, as follows : All the public could require was that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial bridge originally which did not get out of repair for a number of years. The road, however, in the end proved to be less safe than it was when the bridge was first built, and certainly less so than before the ditch was dug. In suffering this the defendant came short of his obligation to the public. Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers is a nuisance. * * * Special damage arising from it therefore furnishes ground for a private action without regard to the question of negligence in him who digs it. The utmost care to prevent mischief will not protect him, if the injury happen without gross carelessness on the side of the sufferer.” The law was settled in the case of Congreve v. Smith, supra, and this case has since been universally approved and followed. The court there held: “ The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it; and whoever, without special authority,
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materially obstructs it, or renders its use hazardous by doing anything upon, above or below the surface is guilty of a nuisance; and those injured have a remedy by action against the author or person continuing the nuisance. * * * There can be no difference in regard to the nature of the act or the rule of liability, whether the fee of the land within the limits of the easement is in a municipal corporation or in him by whom the act complained of was done. In either case the act of injuring the easement was illegal.”
III. The defendant, the Suburban Rapid Transit Company, was liable for the continuance of this nuisance. There is no dispute but that the company, whether lawfully or unlawfully, cut off the planks at this place, for it is so admitted by the stipulation, thus either creating a nuisance or making the platform-approach liable to become a nuisance at any time through lack of repair. Assuming, but not conceding, that the original act was lawful, the question then is whether at the time of the accident the company was responsible for the condition of the plank in question. The plaintiff claims that the liability of the company is clearly and unmistakably shown in the following ways : (1.) The company originally constructed the platform-approach, in connection with the dock-department, and paid six-elevenths of the cost directly to the contractors, Walls & Van Riper. (2.) The Suburban Rapid Transit Company owned or controlled the dock at the place of the accident and at the time of the accident. It was therefore responsible for the careful repair and maintenance in a safe condition of the platform-approach. (3.) Irrespective of the question of ownership or control, the platform in question formed a convenient and necessary approach to the bridge, and was a part of the defendant’s bridge. It was therefore the duty of the defendant to keep and maintain this platform in safe and proper condition. In the case of Hayes v. The New York Central, etc., Railway Company,
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9 Hun, 63 , the general term of the Supreme Court, Third Department, held in 1876 that the railway company in building a bridge for its convenience over a road, and for the purpose of the bridge disturbing the original roadway, is bound to keep the new approaches made by its disturbance of said roadway in repair. “ The approaches are a necessary part of the bridge.” The court said, referring to the permission given to the defendant to construct its bridge, “ This permission acted upon implies an obligation to maintain.” Referring to the case last cited, the Court of Appeals in Carpenter v. The City of Cohoes, held that the approach in question was constructively a part of the bridge ( 81 N. Y., 24 ). To the same effect are many New England cases which are cited by the learned counsel for the respondent in the Hayes case, supra. (4.) The Suburban Rapid Transit Company bound themselves by the contract with the park department to keep the platform-approach in repair, and this obligation imposed the corresponding liability. (5.) Further, the defendant company showed by its acts that it considered itself hound by this clause of the contract, and, in fact, the attitude of the company towards this platform-approach up to and after the time of the accident was always that of owner, or one responsible for the condition of said platform-approach. The company also showed by its acts that this platform could reasonably he considered a part of the bridge.
IV. The fact that the city also may have been under obligations to keep its highway safe in no way relieves the defendant from the duty of keeping this platform-approach in good repair. Masterson v. N. Y. C. & H. R. R. R. Co., 84 N. Y., 225 , held : “ The city had a duty to perform. The street railroad also. An action might perhaps lie against either for the omission of duty leading to the death of the testator, but because this crossing had many guardians the obligation upon the defendants was in no particular diminished.” Fash v.
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Third Avenue R. R. Co., 1 Daly, 148 , held : That “ it was wholly immaterial whether the projection was caused by the failure of the corporation of the city of New York to repair the streets in the locality of the accident.” “ The defendants having undertaken to lay down a railroad track along the avenue, which was a public road, they were bound to lay it down properly and to see that it was kept in a proper condition thereafter.” So in Hayes v. N. Y. C. & H. R. R. R. Co., supra, where defendant contended “ that even if they are liable to maintain the substructure of the approaches, yet that the surface of the roadway, the superstructure, 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,” it was held (citing N. S. R. W. v. Dale, 8 El. & B., 836), that the bridge surface and approaches must be kept in repair by the railroad company. Carpenter v. C. P. N. & E. R. R. Co., 11 Abb., N. S., 416; Colegrove v. H. & N. H. R. R. Co., 6 Duer, 328 . There is also a long line of cases in accord that hold that although it is the duty of the city to keep its highways in repair, yet the city may recover over against one through whose misfeasance or nonfeasance the city has been compelled to answer in damages. Troy v. T. & L. R. R. Co., 49 N. Y., 657 ; Seneca Falls v. Zalinski, 8 Hun, 571 ; Rochester v. Montgomery, 72 N. Y., 65 ; Port Jervis v. 1st Nat. Bank, 96 Ib., 550; Mayor v. Dimick, 49 Hun, 241 .
Y. The case of Rochester v. Campbell, 123 N. Y., 405 , the authority most relied upon by the defendant, is not analogous to the case at bar, and in no way is it decisive of this case as against the plaintiff’s right to recover.
YI. The question of contributory negligence on the part of the plaintiff was correctly left to the jury, and their verdict in favor of the plaintiff is conclusive.

We are satis

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fied, from a careful examination of the evidence in this case, that in constructing the bridge and its footways over the Harlem river, the defendant, at the point where the plaintiff received her injury, interfered with a part of the public highway, without authority or warrant of law therefor. The platform-approach to the stairway leading to the footway of the bridge must be regarded as an appendage to and practically a part of the bridge. The defendant undertook to construct and maintain a bridge over the river, “ open for the free use of all persons desiring, to pass and re-pass over the same on foot.” The structure, without suitable approaches, would be useless to foot-passengers, and could not be said to be a bridge. The approaches are as necessary as the structure itself. ■ S. & R. Neg. [3d ed.] § 253; Hayes v. The New York Central, etc., R. R. Co., 9 Hun, 63 ; Carpenter v. The City of Cohoes, 81 N. Y., 21 ; The Commonwealth v. Deerfield, 6 Allen, 455 .

By the terms of defendant’s contract, defendant was bound to keep “ the bridge and its footways and approaches and stairways and roofs in complete order.” Also both principle and authority imposed upon the defendant the obligation of keeping the same in repair. Hayes v. The New York Central, etc., R. R. Co., supra, and cases above cited.

One of the planks in said platform-approach in some manner became loose, so that the end projected along the other planks of the platform, and the accident was caused by the plaintiff catching her toe against the end of this plank. This defective condition of the platform approach rendered a part of the public street unsafe for the ordinary purposes of travel, and constituted a nuisance. Wood on Nuisance, §§20, 319 and 324; Thompson on Highways, 274 ; Sherman & Redfield on Negligence, § 332 ; Ahern v. Steele, 115 N. Y., 203 .

The evidence under the law as we understand it, and as set forth in the authorities above quoted, placed the

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responsibility for the repair and maintenance of the platform-approach in a safe condition upon the defendant. There was no evidence tending to make any other person or organization than the defendant responsible for the condition of the plank at the time the plaintiff fell. This was the instruction of the learned trial judge to the jury, and we find it to be correct.

The defendant owed to the public the duty of keeping the highway, with which it had interfered, in as good a condition and as safe as it was before the interference. This obligation it did not keep. Any special damage arising from its failure in this respect furnishes ground for a private action, without regard to the question of negligence on the part of the defendant, (Dygert v. Schenck, 23 Wend., 446 ; Congreve v. Smith, 18 N. Y., 79 ; Clifford v. Dam, 81 Ib., 56; Mairs v. Man. R. E. Asso., 89 Ib., 493; Wolf v. Kilpatrick, 101. Ib., 146; Cohen v. The Mayor, etc., 113 Ib., 538).

For these = reasons the defendant was liable for the injury sustained by the plaintiff, unless her own negligence contributed thereto. The question of contributory negligence on the part of the plaintiff was correctly left to the jury, and their conclusion in her favor on this point was fully justified by the evidence.

An examination of the exceptions fails to disclose any rulings prejudicial to the substantial rights of the defendant.

The injury sustained by the plaintiff was serious ; it caused her great suffering and will give her pain and trouble all her life. We do not think the damages • awarded by the jury excessive.

The judgment and order appealed from are affirmed, with costs.

Freedman and Dugro, JJ., concurred.