Ellen Farrell and William Farrell, as Administrators, etc., of Patrick Farrell, Deceased, Appellants, v. The Town of North Elba, Respondent

Ellen Farrell and William Farrell, as Administrators, etc., of Patrick Farrell, Deceased, Appellants, v. The Town of North Elba, Respondent. Third Department, March 7, 1906. Negligence — death by fall from unguarded approach to highway bridge-manner of death unexplained — dismissal of complaint sustained. When "in an action to recover for the death of the plaintiff’s intestate on the theory that the decedent fell in the dark from an unguarded approach or abutment of a highway bridge, there is no proof of how he came to his death or of freedom from contributory negligence, and the whole matter rests in conjecture, a dismissal of the complaint is proper. As the decedent, a young active man of intelligence, lived hut a few feet from the bridge, and' had crossed it frequently, the presumption is that he came to his death through carelessness on his part. Appeal by the plaintiffs, Ellen Farrell and another, as administrators, etc., of Patrick Farrell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 20th day of May, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Essex Trial Term. Plaintiffs’ intestate was found dead in the west branch of Ausahle river about ten a. m., his feet being near, the shore, his stomach resting on a large stone in the water, his head and most of his body covered by the water, his legs "being partly out of fihe water. No bruises were found upon him, and it does not appear when he died. He lay nearly parallel to the Ware bridge, which stands on an embankment about nine feet high, and is much narrower than the highway which narrows as it approaches the bridge. There are no rails on the approach to the bridge or on the abutments, although there are guard rails upon the bridge. The foot path turns into the ro.ad as it approaches the bridge, and if any one walked straight along disregarding the turn in the path, he might well' fall ovér the embankment. The decedent had workéd on the Ware farm, lying-on both sides of the bridge, for about six months, and the house in which he lived was but a few feet from 'the. bridge* and he crossed the bridge frequently in driving cattle and in doing his work, and he well knew the situation. He was last seen alive, by the witnesses sworn, about eleven o’clock the previous night, at the house of his brother about two miles from the bridge, and was starting to go to the Ware farm. He was twenty-five years of age, unmarried, a farm hand and apparently of fair intelligence, It was a dark, rainy night. His habits are not shown, nor his condition on that night, except from his conversation in evidence we may judge that he talked intelligently. The plaintiffs claim the decedent must have fallen from the abutment or the approach of the bridge, being unable in the darkness to distinguish the walk. The defendant assumes that he walked from the road in the dark into a little ravine, some distance from the bridge, and arrived at about the spot where his feet rested, and fell, and contends that there' is no evidence, but only conjecture, as to how he came there and met his death. Berne A. Pyrke, for the appellants. Frank B. Wickes, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: There is an entire absence of proof as to how the deceased came in the water, or what'care be took, or how negligent he was. We are left entirely to conjecture as to the cause of his death, or his actions. The court held there was no evidence tending to show that he exercised due care.- It is difficult to see how a man as familiar with the place as he was could fall or get into the river there with the exercise of due care. He knew the situation and the danger; he knew it was dark, the narrowing of 'the road and the turn in the walk. In Peaslee v. Town of Chatham (69 Hun, 389), a very similar case, the complaint was dismissed. There the decedent was seventy-eight years old and more likely with due care to stumble and fall on a dark and rainy night than a young man. It would seem that a young man accustomed to the place would not naturally go off or fall off the abutment or approach to this bridge if he were exercising due care. In Irish v. Union Bag & Paper Co. (103 App. Div. 45) there was no reason why the intestate should 'apprehend danger, and the injury might well have occurred frcjm the improperly insulated wire even though he were exercising all the care the knowh situation seemed to demand from the most careful person. He was a prudent.. and sober man, and the nature and extent of the danger was not apparent to him. Here ii cannot well be seen bow the decedent came to his death without some fault or carelessness upon his part. The judgment is affirmed, with costs. All concurred. Judgment unanimously affirmed, with costs.