MacMahon v. Brooklyn & New York ferry Co.

Bradley, J.: On the evening of July 21, 1895, the plaintiff’s intestate, with John Williamson and Charles L. McCann, was in a steam launch with which the defendant’s ferryboat collided in the East river, and his death by drowning resulted from the collision. The plaintiff charges that the accident was attributable solely to the negligence of the defendant. Much and some conflicting evidence was introduced as to the circumstances and attending conditions under which the accident occurred, bearing upon the issues presented for trial. The three gentlemen above referred to embarked in the launch at the Wallabout basin, and proceeded up the Brooklyn side of the East river to a slip at the foot of South Second street, passing several ferryslijjs, including that of the Twenty-third Street Ferry. After remaining there for a time they proceeded to return. There was a strong flood tide which retarded the progress of the launch, so that it proceeded very slowly. It was a small boat, evidently having weak motive power. When it came near to the Twenty-third Street Ferry slip (its then particular locality does not very clearly appear) Williamson testified that he saw the ferryboat distant 450 feet, coming down the river, headed towards the Brooklyn shore, and at some point below that slip until after it came within 200 feet of the launch; that when at that distance the launch whistle was blown repeatedly. The course of the ferryboat very shortly after Avas turned in the direction of the Twenty-third Street Ferry slip. The launch was in front of it, and thereupon Williamson ineffectually attempted to reverse the engine and go with the tide out of the Avay. Failing in that he directed the use of the hand oars, which were brought into requisition for a momentary or brief space of time, when the ferryboat came on to the launch. Williamson and McCann were taken aboard the, ferryboat. An important fact bearing upon the question of the alleged neg [378] ligence of the defendant was whether or not it was daylight at the time the ferryboat approached the place of the accident. There was a marked conflict in the testimony of witnesses on that subject. That of the pilot on the ferryboat was to the effect that although he heard the whistle he did not see the launch until he came within 50 feet of it, and that up to that time he had, by reason of the darkness, seen nothing to deter him from proceeding into the slip ; that if he had seen the launch at 200 feet from the slip the course of the ferryboat was such that he could have avoided the collision. Other witnesses testified that it was cloudy and had then become dark, or partially dark, so as to render the view of objects at much distance dependent upon artificial light. And in support of this testimony, evidence on the part of the defense was given tending to prove that it was eight o’clock and after. The sun set on that day at twenty-six minutes past seven o’clock. On the part of the plaintiff evidence was given to the effect that at the time of the accident it was not later than half-past seven o’clock, and that it was daylight — “ perfectly clear daylight.” Some of the passengers on the ferry boat testified that the launch was plainly visible and was seen by them when the ferryboat was more than 200 feet from it. And some others, who were on the Brooklyn shore and much farther than that from the launch, testified to the same effect. In view of the evidence, the question wdiether the pilot of the ferryboat ought to have seen the launch when its whistle was first blown, if not before, was one of fact for the jury, as was also that of the negligence of the defendant, in consequence of the pilot’s failure or omission to observe the launch and the danger of its occupants, if the ferryboat proceeded into the slip, and to avoid the collision and the consequences which followed. It is urged with much force by the counsel for the defendant that the plaintiff failed to prove that the death of the plaintiff’s intestate was not attributable to the negligence of the persons on the launch, or of some of. them, or that such negligence did not contribute to the accident. It may be that they were so situated when the ferryboat was seen 150 feet away that, if they had supposed that it was destined for the slip which it entered, they might have avoided it, although there is some evidence which may be construed to import the contrary. But it may now be assumed upon the evidence that [379] they did not know that the ferryboat was on its way to that slip,, and that they were led to suppose she was not, because her bow was headed towards some place below that slip on the Brooklyn side of the river. The pilot says the course of the boat was not in line with the slip, but was towards the Navy Yard below, until within 200 feet of the slip, and that he then turned to port towards the slip, which was his usual method, and that he then saw nothing in the way. They had no lantern on the launch. There was one on her when they started up .the river, but it had been lost. N one, however, was necessary at the time in question, if it was then clear daylight. Those persons in the launch were not expert navigators. Neither of them had had much experience in running a boat. Williamson was an engineer accustomed to running engines. The engine and side wheel propellers of the launch were somewhat peculiar. It was a. new design of his own. He, prior to this time, had run the boat some on the river, but not in that locality. This was a pleasure-trip. He ran the engine and MacMalion steered with the tiller at the stern. McCann occupied a seat in the bow. It is said that they had failed to observe the requirements of the Federal statutes relating to navigation in respect to license, skill requisite, and in other respects. Those are matters entitled to consideration, but default in that regard does not necessarily under all circumstances impute to a party contributory negligence, and deny to him relief for injury resulting from the negligence of another. Nor will a vessel be excused if it fails to adopt reasonably precautionary means to avoid collision with another, although by the rules of navigation she-would otherwise have the right to keep her course. If, therefore, by the exercise of reasonable care, the running against the launch might have been avoided by the pilot of the ferryboat, the defendant is not relieved from liability by the mere fact that those rules were not observed in the-means or method of navigation of the launch, although the former was in her usual course and as she otherwise would have been entitled to run. (The Sunnyside, 91 U. S. 208 ; Cooper v. E. Transportation, Co., 75 N. Y. 116.) It is true that those in the launch knew that ferryboats were going from and coming into the slips, on the Brooklyn side every few minutes, and as a boat had recently-gone out of the Twenty-third Street Ferry slip, they had reason to suppose that another would shortly return to it, and when they got [380] outside the pier to go down the river, they must have observed that the tide was so strong that it was difficult for the small boat to run against it, at all events, with much headway. If dark or less than twilight, it would seem, without any artificial light on the boat, to have been quite hazardous for them to proceed with it. But assuming, as we may upon the findings of the jury, that it was daylight, they were entitled, in addition to their own efforts, to the reasonable care and precaution of the ferryboat pilots for protection against danger from the ferryboats in their charge. When the ferryboat veered to port and thus changed its course to proceed into the slip, the launch was in front of it, and the reversal of her engine not being available to push her back with the tide, she became apparently helpless, for her own protection, against the ajiproaching ferryboat. At least such conclusion was permitted by the evidence. It may have been by the want of reasonable precaution that the launch got into the position and place in which it was at the time, and those having her in charge may not have exercised the best judgment in the attempt to get her away from the course to the slip after the ferryboat had turned in that direction, but the fault in the navigation of the launch, which placed her in that relative position, did not, nor did such error of judgment, necessarily render the accident attributable to the contributory negligence of those in her. The situation may be viewed as it existed just before and at the time the ferryboat turned its course to the slip. Her pilot had no right' to run into the launch if he saw and could reasonably have avoided her, nor was the defendant necessarily, by the circumstances before mentioned, relieved from the charge that its negligence was solely the cause of the calamity, and from liability as the consequence, if its pilot, by the exercise of reasonable care, would have seen and avoided the collision which resulted in the death of the plaintiff’s intestate. {Austin v. N. J. Steamboat Co., 43 N. Y. 75; Hoffman v. Union F. Co., 47 id. 176 ; S. C., 68 id. 385 ; Blanchard v. N. J. Steamboat Co., 59 id. 292; Harris v. Uebelhoer, 75 id. 169; Minerly v. Union Ferry Co., 56 Hun, 113.) The examination of the record leads to the conclusion that the jury were permitted to find that the' facts essential to the plaintiff’s recovery had the support of the weight of the evidence, and, therefore, the motion to dismiss the complaint was proj)erly denied. [381] The defendant’s counsel complain of inquiries made by the court of the pilot of the ferryboat, while he was on the stand as a witness, to test his power of vision. This witness having stated that he was sixty-one years of age and could at the time of the trial see “ all over ” and “ farther than some young men,” his attention was called by the court to some printed objects and figures in the court room and inquiries were made of him to test his eyesight, to which no objection was taken. His ability or inability to see objects at that time, nine months after the occurrence in question, was not a relevant fact unless his eyesight was as good at the latter as at the other time. The import of the testimony of the witness which led to this further inquiry by the court was that his power of vision was unimpaired and remarkably good at the time he was testifying. We think there was no error to the prejudice of the defendant in the examination of the witness by the justice presiding at the trial. The case seems to. have been fairly submitted to the jury, and none of the exceptions to the charge as made were well taken. The verdict ivas quite large in amount, but in view of the age, character, habits and business capacity of the deceased as they appeared by the evidence to have been, of the age of his children, and of the income derived from his services and business occupation, it cannot well be seen that the damages were excessive or more than the jury were warranted in finding that his widow and next of kin, who were dependent upon him for their support and education, had sustained pecuniarily by the death of the plaintiff’s intestate. The judgment and order should be affirmed. All concurred Judgment and order unanimously affirmed, with costs.