Sherman & McCabe v. Fream

By the Court, T. R. Strong, J. The questions of fact in this case must, on the appeal, be regarded as settled by the verdict. Ah appeal upon the facts lies only when the trial was by the court or referees, and not when the trial was, as in this case, by jury. I think the objection to the question to the witness McAllister was properly sustained. It was not a question in the case whether generally, in case of danger to a vessel of collision with a steamboat, which could be avoided by luffing, it would be proper for the vessel to keep her course or luff. Besides, the law determines what is proper in such cases, and it is not a subject of inquiry by evidence. The inquiry should have been, what would have been proper under such circumstances as were disclosed in the case ? Hone of the exceptions to the charge are, in my opinion, well taken. If the defendants took the steamboat from the general owner, and agreed to pay the persons employed in navigating her, and the expenses of running the boat, they were the owners for the time, and responsible for negligence in her navigation. So, if they received the price of passage, freight, &c., and had the direction and control of the boat. If the defendants by their contract chartered the boat generally, they were owners in respect to liability for negligence in running her. If the contract was one of affreightment merely, they were not such owners. The evidence, I think, warranted the opinion expressed by the judge, that the contract was not a contract of affreightment. It cannot be insisted that this question should have been submitted to the jury, as that was not requested at the trial. [482] [New York General Term, December 23, 1859. If the defendants employed the officers and hands, and. were legally responsible to them for their wages, the defendants had the control of the steamboat, and were liable as owners, &c., in the absence of evidence of some special arrangement securing the control of the boat to others, and there is no such evidence in the case. Unless the crew of the vessel struck by the steamboat grossly erred in judgment in leaving her soon after the collision, I think the defendants are not thereby exonerated from liability for the entire loss, although the vessel floated thirty or forty minutes after the collision, before it sunk, and might have been run on shore. The crew were not bound to remain on the vessel unless it was entirely plain they could do so with safety, and there was good reason to suppose the vessel could be saved. If such circumstances existed, leaving the vessel was gross negligence. The request to charge was, I think, properly declined. It would not follow, if the defendants hired the steamboat, and were responsible to the general owner for. the pay of the officers and men, and not to the officers and men themselves, that the general owner had the control of the boat. If such was the contract, the defendants might have taken and retained such control, and there is evidence tending to prove that they did so. My conclusion is that the judgment should be affirmed. Judgment affirmed. Roosevelt, T. R. Strong and Sutherland, Justices.]