The defendants were commissioners of city works in Brooklyn, and the plaintiff claims to recover damages for injuries sustained by reason of the dangerous condition of a bridge which, it is alleged, it was the duty of the defendants to keep in repair and in a good and safe condition. The liability of the defendants is claimed to exist by virtue of the city charter (Chap. 863, Laws of 1873), which, it is insisted, expressly confides to this department the care of bridges. By title 14, section 1 of said charter, provision is made for organizing a department of city works consisting of a president and commissioners, and it is declared that "said commissioners shall have charge and control, subject to the directions of the *Page 367 common council," of various matters which are enumerated, and under subdivision 10, among other things, of the construction, altering and repairing of public structures, buildings or offices and all other public works under the care of said department." The power here conferred is quite full, but nevertheless is subject to the control of the common council. Although the board of city works is one of the departments recognized in the charter (Title 3, § 2) as well as in title 14, § 1, supra, it is, however, subject, to some extent at least, to the legislative power which is vested in the common council, which has authority over the affairs of the city and is "to supervise the affairs of all the departments and offices herein named." (Laws of 1873, § 13, subd. 2.) The qualification placed upon the powers of the commissioners would seem to put them under the control and direction of the common council to a certain extent, and in the exercise of the functions conferred by the charter, that body, if they deemed it advisable, could have the right to legislate as to the management and control which should be exercised over the same for the public benefit, although their powers were not absolute and the commissioners still retained certain independent functions.
The bridge was built under the directions of a board of commissioners by virtue of a special act of the legislature (Chap. 826, Laws of 1868) and in accordance therewith, upon the improvement being completed in 1871 or 1872, a report thereof was made to the common council, and it was provided that thereupon it would be deemed to have been transferred to said common council. According to the evidence at the time of the accident it was in the same condition as when handed over, and no doubt was subject to the same general rules and control as other structures of a similar character. In this connection some other provisions of the charter may properly be adverted to, and under title 11, section 62, the board of police were authorized to appoint suitable persons as keepers of bridges, who were to perform all the duties, subject to the regulations and ordinances of the common council, and a keeper of this bridge was appointed accordingly. It is thus apparent that *Page 368 it was the duty of the police department to provide the necessary keepers to manage and control the bridge in question, and had this been effectually done it is most probable that the accident in controversy would not have occurred. The bridge was supposed to have been in a completed condition when delivered, and no repairs were required so far as appears, but accidents may have been guarded against either by an additional keeper or by a gate or some obstacle or barrier which would prevent persons from being injured. Were the commissioners responsible that this was not done?
The common council, as we have seen, exercised a general direction and control over the department of public works and a supervision over the same. The city was liable for any contracts except, among other things, for the repaving of streets, and all contracts, other than for the purposes excepted, exceeding the sum of $250, were to be made as provided by Laws of 1873, title 17, § 1, and the common council were required to make the necessary appropriation of money to keep the streets in repair. (Title 2, §§ 20 and 21.) Having in view the different provisions defining the power of the defendants, and those conferred upon the common council under the various statutes to which reference has been had, I cannot resist the conclusion that the commissioners had authority over the bridge in question. Their general powers cannot be questioned, and the restriction imposed, which places them under the control and direction of the common council, did not prevent their making the necessary arrangements to guard against accidents. Suppose the bridge had got out of place or had become unsafe on account of weakness or insecurity, or by accident, can there be any question that it was the duty of the commissioners to see to it and to provide safeguards for the protection of the public? The common council's duty was supervisory, but theirs was a positive duty. If the amount required for repairs was less than $250, then they had the power to expend that sum. If beyond that sum, they should have applied to the common council for the necessary funds. They did neither, and hence were not relieved from responsibility, and it was a question *Page 369 of fact for the jury whether, under all the circumstances, they were negligent. Under the Laws of 1873 (Title 17, § 2), the commissioners were bound, with the approval of the mayor, in case any bridge "shall become dangerous" to cause the same to be repaired, and I am unable to perceive why this provision is not applicable to the case of a bridge which had, on a previous occasion, been the cause of accident of which notice had been given.
Although the police commissioners had appointed a keeper, it was confessedly an insufficient and an inadequate protection, and the defendants should have seen either that some effectual mode was adopted by appointing a sufficient number of keepers for such a purpose, or that some other means were provided by the interposition of some barrier or obstacle for protection from accident. As to this, however, it was for the jury to determine in view of the facts.
Nor can it be urged, we think, that such an appropriation could be said to be a local improvement within the meaning of the charter. (Title 18, § 21.)
If, however, a specific appropriation was required, it should have been applied for to avoid the allegation of negligence. The fact that the bridge was built under a special act of the legislature and handed over to the common council does not exonerate the defendants from the obligation imposed upon them or place it in any better or different condition than other similar city structures.
Nor is it entirely clear that the plaintiff was guilty of contributory negligence. As the case stood, we think the judge erred in granting the nonsuit.
The judgment should be reversed and a new trial granted, with costs, to abide the event.
All concur for affirmance, except MILLER, J., dissenting.
Judgment affirmed. *Page 370