Serow v. State , 120 Misc. 576 ( 1923 )

Ackerson, P. J.

On the 4th day of November, 1921, the claimant, a contractor, accompanied by bis chauffeur, was crossing the bridge over the hydraulic canal on East Cayuga street in the city of Oswego.

Claimant was riding on the driver’s seat of his five-ton White motor truck alongside of his chauffeur who was driving it. They had been to the East Side Barge canal terminal in the city of Oswego, loaded the truck with two and one-half tons of sand and were returning going easterly over the bridge in question which is the only entrance to said terminal. When fairly upon the bridge without warning the stringers of said bridge near the westerly abutment broke and the truck with claimant and his chauffeur was precipitated into the bottom of the canal some fifteen or twenty feet below. The canal prism was dry at this time.

Claimant suffered serious personal injuries, his truck was badly damaged, and he suffered considerable pecuniary loss in addition by reason of being physically unable to work and also by reason of being deprived of the use of his truck for several weeks.

So much of his claim the state does not seriously dispute.

Claimant contends that the state is liable for the damages and the state answers that not it but the city of Oswego should be made to respond for whatever injury has been done.

The question before us, therefore, is who at the time of this accident was responsible for the care and maintenance of the bridge in question.

The evidence discloses that in June, 1916, the state of New York appropriated certain property on the east side of the Oswego river in the city of Oswego from the Peoples Gas and Electric Company for a Barge canal terminal. This property was bounded on the south by East Cayuga street, which extended easterly from the Oswego river across the hydraulic canal to East First street. The appropriation included the north eighty feet of East Cayuga street extending from the Oswego river to said East First street. This portion of East Cayuga street included the bridge in question. There is no claim made by the state that the city of Oswego owned the fee of this street and there is no evidence in this case to establish that it was- ever dedicated as a public street and accepted as such by. the city of Oswego. The Court of Appeals, however, in the case of Oswego v. Oswego Canal Co., 6 N. Y. 257, so held.

Several modifications of this appropriation were afterwards made, but in all of them the bridge in question remains within the boundaries of the land retained by the state.

This appropriation was made by the state pursuant to chapter 746 of the Laws of 1911, known as the Canal Terminals Law. In section 14 of said terminal law we find this language: “ The terminals provided for in this act when constructed shall be and remain the property of the state, and all of said terminals, including docks, locks, dams, bridges and machinery, shall be operated by it and shall remain under its management and control forever.” The necessity of making this bridge a part of the terminals at this point is apparent because it is the only entry or approach to the terminal from the public streets of the city.

The contention of the claimant that the state is responsible for the maintenance of this bridge would seem to be, therefore, well founded, inasmuch as the bridge is a part of the terminal itself and, therefore, under the law, the property of the state.

The learned deputy attorney-general contends, however, that the bridge was never appropriated from the city because the appropriation map was never served on the city of Oswego. This, however, is not a sufficient answer to the fact that the state not only included this bridge within the boundaries of the property it appropriated as set forth on its appropriation map, but that it entered into possession thereof, exerted dominion over the same, dismantled it, reconstructed it, granted an easement to abutting owners to use it, and its ownership and dominion of the same was acknowledged and acquiesced in by the city authorities of Oswego.

On the 9th day of July, 1915, about a year before this appropriation the common council of the city of Oswego passed a resolution recognizing the intention of the state to build a canal terminal at the place in. question, to include all of East Cayuga street between the Oswego river and East First street, and expressing the purpose of the city of Oswego to aid and assist the state in the construction of said terminal and resolving as follows:

“ Resolved, that the City of Oswego do give and grant to the State of New York the use and right to use that portion of East Seneca Street and that portion of Cayuga Street lying between East First Street and the Oswego Biver, or so much thereof as the State of New York may deem necessary for its purpose, and that the Mayor and City Attorney be and they hereby are authorized and directed to take any and all steps necessary to carry this grant into effect.

“ This grant and right being given subject to the rights of any .abutting property owners on said streets.

“ That the City of Oswego erect a suitable bridge to be approved by the State Engineer over the Power Canal in East Cayuga Street and leading to the East Side Barge Canal Terminal, upon the letting of the contract to construct said terminal, and that the Mayor and Commissioner of Works be, and they hereby are instructed to take any and all steps necessary to that end.”

The city of Oswego, therefore, welcomed this appropriation, agreed to, acquiesced in and consented to it, and furthermore agreed to construct a new bridge at the point in question not for the city of Oswego but for the state as part of said terminal.

Up to the time of this accident, however, the city had not made good on its suggestion that it would construct a bridge here for the state.

On consulting the correspondence in evidence, we find that when the state called upon the city of Oswego to construct a bridge here as it had agreed to do, the city replied that the land had been appropriated by the state and until such time as the state transferred unto the city of Oswego the necessary land on which to erect the bridge it could not proceed with the construction.

At the time of this accident, therefore, the city conceded that the portion of East Cayuga street, at least, upon which the bridge rested had been appropriated by the state. And whether admitted or not the state had in fact appropriated the bridge by taking possession of it. American Woolen Co. v. State of New York, 195 App. Div. 698; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351, 357.

At the time in question, therefore, the state was in the absolute possession and ownership of the bridge in question as well as the street at either end of it. It was part of the canal terminal and the state was responsible for maintaining it in a safe and proper condition for travel, which it failed to do.

The sign at the end of the bridge that it was unsafe for more than one ton was almost illegible, concealed by weeds and unknown to claimant or his chauffeur. Such a sign, therefore, so placed, is of no protection against a claim for damage except in a case where the claimant had actual notice thereof, which is not this case.

We find, therefore, that the claimant is entitled to an award against the state for the following items of damage:

Expense of removing the truck from the bottom of the canal and extricating it from the bridge, $127.93.

Claimant suffered much pain, was confined to his bed for about ten days and to his home for about two months and is still suffering to some extent from the injuries received, for all of which we allow him $1,000.

We allow for depreciation on the truck $1,500. This includes, of course, what he paid out for repairs.

Claimant paid for doctor’s services and medicines the sum of $68, for which he is entitled to be reimbursed.

Claimant has proven that he was deprived of the use of this truck forty-seven days and the net value of the use of said truck was $15 per day, which would amount to about $705. But he has also proven that during the time the truck was out of commission he paid the sum of $315 for the rent of trucks he was compelled to hire to carry on Ms business. We consider the latter sum, therefore, the true measure of Ms actual damages to wMch he is entitled.

Claimant testifies that when working he placed Mmself on Ms own payroll and drew $40 per week, and that, therefore, as he was laid up eight weeks he lost $320 in wages. We cannot allow him for this amount for the reason that he Mred a man to take Ms place for $30 per week, and we allow Mm for the $240 that he paid for Ms substitute.

The sum of the above items is $3,250.93, for wMch we believe the claimant is fairly and justly entitled to an award against the state.

Corwin, J. concurs.