Nicholls v. City of New York

At the time of the accident, to recover damages for which this action is brought, the plaintiff was seven years of age, and had been permitted by her parents to go, in company with another child somewhat older, upon what is known as the “ Willis Avenue ” bridge, which crosses the Harlem river, in the city of Hew York. The bridge is designed for both foot passengers and vehicles, and on the outer side of the pathway for foot passengers is. an openwork. iron railing. It is a drawbridge, and in this pathway, as well as the roadway, there are gates to stop progress while the draw is open. The bridge is of steel, and of ponderous proportions, and the X draw is operated by steam' power. At the time of the accident the draw had been opened for the passage of a vessel,, and- was about *533being closed. It is claimed by the plaintiff that the gate in the pathway having been opened she passed through to the draw, and for the purpose of looking at the passing vessel, put her head through the opening between the outside railing of the drawbridge and the railing of the bridge proper, and the drawbridge being moved. a few inches to its proper place, her head was caught and severely bruised. The negligénce upon which the plaintiff relies is the opening of the gate in the pathway before the draw was- wholly closed.

. Conceding that the accident happened as the plaintiff claims, and that the gate was opened before the draw was fully in place, of all of which there is very grave doubt, still we think no actionable negligence on the part of the defendant was shown.

It is the duty of a municipal corporation to guard travelers upon its highways against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable care and prudence; but a municipality is not liable in damages for injuries resulting from extraordinary accidents which would not be guarded against in the exercise of such reasonable care and prudence. (Beltz v. City of Yonkers, 148 N. Y. 67; Lane.v. Town of Hancock, 142 id. 510.)

It was not to be expected that any one would put his head between the railing of the draw and that of the permanent structure so that it would be squeezed by moving the draw three or four inches to its proper position. Such an act would not be ordinary use for the purposes of travel. Had the plaintiff’s feet been caught in the draw, or had she been thrown-from her balance by its slight movement while walking, quite another question would have been presented.

So far as appears, however, the pathway was entirely safe for travel notwithstanding the pin which held the draw had not been put in place.

It is quite improbable that the gate in the pathway was opened before the draw was actually closed. If the determination of the case depended upon that question alone we should feel constrained to reverse the judgment as against the weight of evidence. On the facts proven by the plaintiff, however, no actionable negligence was established against the defendant for the accident was of such an extraordinary character that the defendant was under no obligation *534to guard against it. The learned trial court erred in refusing to dismiss the complaint as well as in declining to set aside the verdict after it had been rendered.

The judgment and order must be reversed and a n.ew trial granted, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.