¶1(concurring). This is a claim for personal injuries to the husband of claimant, Orian O’Bryan, resulting in his death on the 31st day of May, 1909, through the alleged negligence of the State in not properly maintaining a bridge over the Chenango canal at Pecksport, in the county of Madison, 27. Y.
¶2The deceased resided at West Eaton, in the county of Madison, N. Y., and was in the employ of Albert J. Good-sell, who was at that time highway commissioner of the town of Eaton. The Chenango canal, now used as a feeder for the Erie canal, runs through the town of Eaton; and, at a little hamlet called Pecksport, a highway crosses the Chenango canal by a bridge constructed and maintained by the State. This bridge was constructed of wood, about twenty-six feet long, resting on abutments on each side of the canal, and supported by a needle beam near the center of the bridge. This needle beam was supported by trusses or braces extending to each abutment, and raised above the bridge in the center with an iron rod passing from the point where the two braces join down through the needle beam and bolted to the same, the length of the bolt being thirty-nine inches; the bridge was about fourteen feet wide. There were two large stringers, reaching from one abutment to the other and resting on this needle beam in the center; these stringers were ten inches by twelve inches. There were other stringers, reaching from each abutment to and resting upon the needle beam; these stringers were laid lengthwise, being eight inches by four inches; the face of four inches resting upon the needle beam and being eight inches in height This bridge was rebuilt new in 1897. These stringers reaching from the abutment to the needle beam were placed about *624two feet apart and planks were nailed to the stringers. The planks were cut so as to fit inside and between the two large stringers on either side of the bridge.
¶3In April, 1907, this bridge was repaired by the State; ten new stringers were put in reaching from the abutment to the needle beam, five stringers on each side of the needle beam, and the whole bridge was planked with new plank three inches thick. These stringers were sound and new and were purchased of the Hamilton Lumber Company at that time. The old stringers in the bridge were not removed, but the ten new ones were added and, with the addition of the new stringers, left the stringers about one foot apart. The abutments were of stone.
¶4On the 13th day of May, 1909, the highway commissioner, Mr. Goodsell, was at work upon the highways in the town of Eaton and, in the progress of his work, attempted to cross this bridge with a traction engine which was drawing a Qlimax road machine. The deceased was the engineer on the engine. The engine had passed about half way over the bridge, so that the front wheels were about two feet beyond the needle beam, and the large drive wheels upon which the weight of the engine principally rested were between the abutment and the needle beam, when the stringers beneath the drive wheels of the engine gave way, and the engine dropped through the floor of the bridge into the canal, a distance of about twelve feet, and the claimant’s husband was killed.
¶5The two long stringers, ten inches by twelve inches, reaching from one abutment to the other, did not break, nor did the needle beam or trusses; one-half the flooring from one abutment to the needle beam and the stringers that supported the planking went down into the canal.
¶6Mr. Goodsell, the highway commissioner, says that when they -approached the bridge with the engine they stopped. Goodsell examined the bridge before going upon it, looked at the bridge from the under side, and says he saw nothing wrong with the bridge; that he thought the stringers were sufficient, and that he found nothing about the bridge to indicate that it was unsafe. The engine weighed about four *625and one-half tons, had a supply of coal and water tank holding about three barrels of water in addition to its weight and was drawing a Climax road machine at the time it went through the bridge.
¶7Mr. Goodsell laid plank and scantling lengthwise of the bridge upon which to run the wheels of the engine, so as to distribute the weight of the enginé more evenly; but the planks laid by Mr. Goodsell did not reach the abutment on either side but rested across the needle beam. The bridge was nearly at a grade with the highway. There was some testimony of Goodsell that the ends of some of the stringers were rotten, but they were evidently some of the old. stringers which had not been removed in 1907, at the time the bridge was repaired.
¶8I am .of the opinion from the facts established by the evidence in this case that the claimant cannot recover. Two years before the accident the bridge had been repaired with ten new stringers put in besides the old ones, and the bridge replanked. There was no improper construction of the bridge. The State had no actual notice that the bridge was unsafe. There was nothing in the appearance of the bridge, from an examination made just before the accident, to indicate that it was unsafe; there was nothing that could be construed as a constructive notice to the State that the bridge was unsafe. The highway commissioner, who, from the nature of his work, must have been familiar with bridges and their construction, made an examination before attempting to cross and considered it safe; and I fail to see, under such circumstances, how any negligence can be charged against the State. The bridge broke with the weight of this traction engine. It was an accident without legal liability. The claim should be dismissed.
¶9Claim dismissed.