Gardner v. Hines

Putnam, J.: Where a barge with tug is engaged in transporting cargo from New York city to the West Shore piers at Weehawken, N. J., and is actually in course of that voyage, the owner is engaged in interstate commerce. The proof here also brings within the protection of the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143) the barge captain’s acts when in the course of the voyage he passed to and from the tug alongside, in taking coal for his barge galley. As the statute allows a recovery if the accident was caused in part from negligence of defendant’s employees, the court rightly declined to charge that if the proximate cause of plaintiff’s accident was his fall from the tug’s rail, the verdict should be for defendant. Counsel did not request special findings as [172] to what sum they deducted from plaintiff’s recovery, because of any contributory negligence on his part, as this court, following the Federal courts, has suggested should be the proper form of verdict in such cases (McAuliffe v. New York Central & H. R. R. R. Co., 172 App. Div. 597), so that we are deprived of the means to review this verdict in that respect. In the entire record we find no reversible error. The judgment and order are, therefore, affirmed, with costs. Present — Rich, Putnam, Blackmar, Kelly and Jaycox, JJ. Judgment and order unanimously affirmed, with costs.