This is one of the so-called Utica bridge cases.
The principal facts in this case and the law applicable thereto are essentially the same as in the Morrissey case, except that decedent was under the bridge at the time it fell. It appears that the tow-path running under the bridge, had been used as a thoroughfare for upwards of thirty years. This roadway along the canal was, to all intents and purposes, a public way. It led from Clark street to the canal dock, and had been used by the public generally and very largely so by teams from an elevator.
The accident to decedent did not result from any negligence on her part, and the only defense that could be urged against her was that she was a trespasser. In our view of the case, decedent was rightfully under the bridge. The place was entirely open and unobstructed, and had been used for so great a length of time, that if no prescriptive right had attached, the invitation to use same was extended. In view of the fact that the Canal Commissioners had actual notice of the dangerous condition, and that their negligence in not remedying this condition approached such a degree as might be said to be gross, we would be inclined to *275hold that claimant is entitled to recover, were it not for the reasons announced in the decision of the Morrissey case. The point where decedent was standing was within the limits of the highway, which existed prior to the time of the construction of the canal.
Decedent was sixteen years of age, a high school graduate, and had a music and school teacher’s certificate» She left surviving her, her mother, two sisters and one brother. At the time of her death, she was working in a telephone office, earning pay at the rate of $1.50 per day.
It, is the judgment of the Court, that the claim be denied, without prejudice to the right of claimant to present her claim to the legislature, and with the statement, that if it were within our power, we would award to ¡claimant the sum of thirty-five hundred dollars.