Crofut v. Brooklyn Ferry Co.

By the Gourt, Brows, J. The defendant is a corporation, formed under the act of the 9th April, 1853, to authorize the formation of corporations for ferry purposes. The certificate of incorporation, which was made a part of the evidence upon the trial in the city court of Brooklyn, declares that the ferries which the associates have agreed to form, and which are to be established and conducted by the corporation, “shall run from the city of New York to the city of Brooklyn, and from the city of Brooklyn to the city of New York.” Duplicates of this certificate, duly acknowledged by the associates, were filed in the office of the clerk of the county of Kings, in the office of the clerk of the city and county of New York, and also in the office of the secretary of state. This is in obedience to the directions of the first section of the act, which are, that a certificate or a copy thereof, duly executed and acknowledged, shall be filed in the clerk’s office of the county or counties in which such ferry shall be or is intended to be established, and also in the office of the secretary of the state. The business of the company consists in the transportation of passengers and property from one city to the other, across the waters of the East river. It has an office and place of business in each city, where it disposes of its tickets or receives the ferriage, and where the passengers are received and forwarded to their destination. That the books of the company are kept at the office of its attorney in Beaver street, New York, where the directors sometimes meet, and that it is assessed for personal property in that city, does not determine where the corporation is estab [207] lished. If these facts were conclusive upon the question of the locus of this corporation, its place of establishment must be wholly transitory and ambulatory, and at the will of its officers; for it is just as easy for its attorney to keep his office and the books of the company, and for the directors to meet, in Jersey City as in Beaver street, Hew York. The certificate of incorporation, with the acts of the company in the exercise of its franchise, show where the corporation is established, and that is both in Hew York and Brooklyn. This ensues from the nature of the business in which it is engaged. It is a ferry company, and the waters which it crosses lie between the two cities. The ferry is established in, as well as between, the two cities. It takes passengers not from one side—as in some ferries—and lands them upon the other side of the stream; but it takes them from both sides, and lands them upon both sides. The franchise embraces the right of ferriage both ways. It must be established somewhere. It cannot be said to be located and established in one city to the exclusion of the other. It is, in fact, established in both. The jurisdiction of the city court of Brooklyn, being declared to extend to actions against corporations created under the laws of the state, and transacting their general business within said city, or established by law therein, (Sess. Laws 1849, p. 170, § 2, sub. 3,) that court had jurisdiction to try the question of collision, which is the subject of controversy in this action. The action is brought to recover damages for an injury to the canal boat J. L. Page, of which the plaintiff was the owner, from a collision with the defendant’s ferry boat Canada, on the waters of the East river, on the 2d December, 1859. At the time, the J. L. Page was with other vessels in tow of the steam tug Secor, going down the river, to which she was fastened by lines in the usual manner. The collision occurred opposite the company’s ferry slip or landing, on the Hew York side, and from 150 to 300 feet therefrom, the river being full of vessels, some twenty in all, going up slowly with [208] a light wind and little tide. The Canada was on her trip from the Brooklyn side. There was evidence to show that she stopped her engine when about 400 feet from the ferry slip, and waited for the vessels to pass. There appearing to be an opening through the vessels, the Canada got under way, and passing around the stern of one of the vessels, whose sails obstructed the view and concealed the tug from the observation of the pilot of the Canada, she struck the J. L. Page at a right angle, about 35 feet from her bow, going into her about 3 feet. As soon as the pilot of the Canada discovered the tug with her tow he reversed her engine, but too late to prevent the collision. Both the ferry boat and the tug boat had stopped, and were stationary just before the collision occurred, and the principal point litigated at the trial was, which of the two got under way first. Because it is said that if the ferry boat had put herself under headway before the tug, and while the latter was lying still, it was negligence in the latter to run across the bows or course of a vessel under headway at the rate of four miles per hour, which was the speed of the ferry boat at the time of the collision. There was proof on both sides of this question ; the plaintiff’s witnesses averring that the tug, with her tow, was under way before the Canada resumed her motion, while the defendant’s witnesses averred the reverse of this fact. This fact was to be determined exclusively by the jury, and they found in favor of the view maintained by the plaintiff, in which I think they are supported by the weight of the evidence. It was the duty of the Canada, after she stopped her engine, not to have resumed her headway until the passage in front of her was clear and open—so open, at ■least, that her pilot might have seen what was behind the canvass which obstructed his view. In place of doing this, he attempted to pass around the stern of one of the fleet of vessels in his front, and in so doing, her pilot says, “after we started and went ahead 50 feet, we were shut off by the sails of these vessels, so that I could not see the Secor until within [209] 50 feet of her, after we came out from behind these vessels." This was an act of sheer negligence, and was doubtless the principal cause of the collision. [Kings General Term, February 10, 1862. Mnott, Brown, and Lott, Justices.] Two questions were asked of John Purdy, a witness for the defendant, which were objected to by the plaintiff and overruled. They may be disposed of together. He was first asked, “Was that collision caused by any negligence of yours?” And then again, “From what you discovered of the tug in coming down, was she in fault, and how ?” The purpose of these inquiries was, nothing less than to elicit the opinion of the witness upon the questions put in issue by the pleadings, and which were to be determined by the jury from all the facts disclosed in the course of the trial. The evidence was properly rejected. In regard to the amount of the damages, they may be large, but they are not excessive. They are supported by the evidence; at least there is evidence upon which the jury had a right to rely in ascertaining the amount of the recovery. The estimates of the witnesses varied from $700 to $1600. The jury found $1400. as the true measure of damages. There is nothing in the charge of the court, or in the refusal to charge as requested, which is open to any legal exception. The judgment should be affirmed.