Wagner v. Buffalo & Rochester Transit Co.

Adams, P. J.: The plaintiff in his complaint seeks to recover damages of the defendant by reason of the negligence of the latter’s agents and employees who were in charge of the steamer Kirk, the allegation being that the defendant’s boat, on meeting the steel fleet, negligently attempted to pass to the left, whereas it should have turned to the right, in accordance with the provision of section 169 of the Canal Law (Chap. 338, Laws of 1894), which required that “ the [422] master of a float (which includes every boat, vessel, raft or floating thing navigated on the canals) meeting another float, shall turn to the right so as to be wholly on the right side of the center of the canal.” It appears, however, that this requirement was subsequently quite materially modified by the General Navigation Law, which, provides, among other things, that “ when two steamboats are meeting, end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard so that each may pass on the port side of the other,” and that “ when two steamboats are approaching each, other, and if the course of such steamboats is so far on the starboard side of each as not to be considered by the pilots as meeting end on, or nearly so, or if the steamboats are approaching each other in such, manner that passing to the right as in rule one is deemed unsafe , by the pilot of either steamboat, the- pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other steamboat shall answer promptly by two blasts, of his steam whistle, and they shall pass to the left (on the starboard) side of each other.” (Laws of 1897, chap, 592, § 11, subds. 1, 9.) It is further provided by subdivision 14 of the same section that “ in construing these provisions, due regard must be had to all the dangers of navigation and to .any special circumstances which may exist, rendering a departure therefrom necessary in order to avoid immediate danger,” It seems plain, therefore, that if the steamer Alpha was the first to give the signal mentioned in subdivision 9, it became the imperative duty of the defendant’s servants in charge of the Kwh to change the course of that boat to the left, unless existing circumstances at the time were such as to fairly warrant the officer in command of that steamer in regarding a departure from the rule necessary in order to avoid immediate danger. This obviously was the theory upon which the case was tried and submitted to the jury; but it was contended upon the part of the plaintiff that the attempted change of course was in consequence of a signal given by the steamer Kwh, and that such attempt, under the circumstances, was negligence, for which the defendant was liable.- [423] As has already been stated, this contention was controverted by the defendant and considerable evidence was given which tended to show that the signal came from the steamer Alpha, and the question of fact thus raised was submitted to the jury upon a charge which was concededly clear and impartial, and as to which no exception was taken by the plaintiff’s counsel. But at the conclusion of the charge the court was asked by the defendant’s counsel to instruct the jury that, “If the pilot of the Alpha gave two short and distinct blasts on his steam whistle first, it was the duty of the pilot of the Kvrk to answer promptly by two blasts of his steam whistle, and that then the two steamers were required to pass to the left side of each other and the plaintiff was not entitled to recover.” To this request the court replied: “ That is so, unless while passing to the left the defendant’s employees were negligent and could have prevented the accident by the exercise of reasonable care.” No exception was taken by the plaintiff’s counsel to this instruction, but subsequently he asked the court to charge: “ That in case the jury reached the conclusion that the Alpha signaled to pass to the left first, then the defendant, for the protection of plaintiff’s boat, was bound to exercise proper care and diligence in the management of its own boat, whether such care required an observance of or a departure from the general rules of navigation, and the defendant was not bound at all hazards to comply with signals from the Alpha to pass to the left; and that if under all the circumstances reasonable care and prudence for the safety of plaintiff’s boat dictated that it was safest and best to disregard the sig^ nal of the Alpha, it then became its duty to notify the officers on board the approaching steamer that the Kirh, with the plaintiff’s boat in tow, could not without risk attempt to pass to the left, but that it would retain its position along the right side of the canal and pass to the right of the approaching boats.” In response to this request the court stated that it declined to vary its charge; whereupon the plaintiff’s counsel requested the court to charge: “ That the law does not require a boat, that has been signaled to pass either to the right or to the left of an approaching boat, to obey such signal, when to do so is to endanger the boat so signaled, or other boats which it may have in tow.” And to this request the learned trial court made substantially the same reply. [424] To these two refusals the plaintiff’s counsel duly excepted, and the exceptions thus taken raise the principal question relied upon for a reversal of the judgment and order appealed from. In the body of his charge the learned court, after having instructed the jury that if they should find from the evidence that the pilot of the Kirk was the one who gave the signal to pass to the left, and that he gave the same at a time when, under all the circumstances, prudence required that he should keep to the right, they were at liberty to find the defendant guilty of negligence and responsible for the injury which followed; but that upon the other hand, “ If the pilot of the AVpTia, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided and gave the signals, it was the duty of the pilot of the Kirk to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond and pass to the left. If you find that there was not such imminent danger of collision as justified the pilot of the Kirk in not responding to the signal, it was his duty to pass to the left. It will be for you to say whether, under those circumstances he. could have prevented collision of the canal boat and the steel fleet by the use of reasonable-care.” We think this statement of the law governing a case of this character was not only correct, but that it was virtually what the plaintiff’s • counsel sought to have covered by his two requests above-referred to ; and if so, then the learned trial court was not bound,, upon the insistance of counsel, to again charge the same rule of law,, although ' the request so to do was clothed in slightly different language. (Rexter v. Starin, 73 N. Y. 601; Quinn v. O’Keeffe, App. Div. 68.) Where the court has charged sufficiently as to the duty of a person in a particular situation, counsel is not entitled to have further requests charged, the substance of which has been covered ' by the charge already made. This rule is one to which the. courts have steadily adhered, and it is one which we think is especially applicable to this case, inasmuch as no exception was taken to either the main body of the charge or to such supplementary instructions as were given at the request of the defendant’s counsel. [425] We conclude, therefore, that the judgment and order appealed from should be affirmed. Judgment and order affirmed, with costs. All concurred, except Latjghlin, J., who dissents in opinion.