120 N.Y.S. 261 | N.Y. App. Div. | 1909
Lead Opinion
Plaintiff’s intestate was killed by a collision between two car floats in the Horth river. The tug Brainard had on its starboard side a loaded car float some 225 to 250 feet in length, which caused it to project far ahead of the tug. The decedent was the master of this float and responsible for the securing of the cars on the tracks thereof by proper blocking. The other colliding vessel was Transfer No. 10, owned by the Hew York and Hew Haven Company, which had a similar car float on each side. The general course of the Bravna/rd was southeasterly towards Brooklyn, and the general course of Transfer No. 10 was northwesterly towards Hew Jersey. The starboard float of No. 10 collided with the float of the Brainard.
The Brainard'é master testified that he made out the opposite tug at least by her smoke a mile away, dead ahead of him; both were blowing fog signals when 500 feet apart; No. 10 gave a single whistle when 300 feet away; he saw her stack 300 feet away, and her pilot house 200 feet away. He answered the single whistle, ported his helm, which would carry the Bramarcl, to starboard, stopped his engine, gave danger signals when No. 10 was 150 to 200 feet away, then gave the engineer signals- -to go back; when he first-started to back he was “ close on to 200 feet away, maybe 150 feet.” As to the effect of reversing his engine he said : “ By stopping my boat I mean I stopped the engine. I was slowed down all the way across. I'gave the signal to the engineer to stop the engine. The engine was stopped when we gave the signal. The engineer most generally stops then, but the boat hadn’t come to a stop. She will carry her headway a slight, distance. After I gave the signal to stop she went ahead very little because I went back onto her right
It is urged that the collision and death happened so far to the westward in the river that it was within the jurisdiction of the State óf New Jersey.- The State of New York had jurisdiction, of the locus in quo, and the limitation that obtained in Devoe Manufacturing Co. (108 U. S. 401) is not present. In People v. Central R. R. Co. of N. J. (42 N. Y. 299) it is said : “ Confessedly, vessels afloat upon the waters of the bay or the river are, and were intended to be subject to the exclusive jurisdiction of New York.” And I think that it is undoubted that the municipal law of New York governs the case at bar. (Ferguson v. Ross, 126 N. Y. 459, 463.) If this State has jurisdiction of the waters for the purposes - of commerce and navigation, its legislative power to create a cause of action in favor of the next of kin of one negligently killed by vessels navigating in such waters would follow.
Jenks and Miller, ■ JJ., concurred; Woodward, J., read for i affirmance, with whom Hirschberg, P. J., concurred.
Dissenting Opinion
Plaintiff’s intestate was killed on the morning of March 24,1903, while employed as á floatman upon one of the "car floats lashed to
We are unable to see the force of this suggestion. The provision of section 1181 of the Code of Civil Procedure is that “ When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the -court may, pending the decision of such motion, submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to.” '
The evidence was undisputed that on the morning in question there was a heavy fog; that the boats or barges were approaching each other, sounding fog warnings at intervals; that they were seen by the respective captains of the tugboats who were in charge of the navigation of the craft when from 200 to 500 feet apart; that danger signals were given, and that the engines on each of the tugs were reversed, and apparently that everything that could be done was done to avert the collision.' There was no expert evidence introduced as to the proper method of handling these floats; no negligence is'suggested.as to the method of towing these boats, and all the evidence before the jury tended to show that the boats, operated at half speed in the fog, were operated with ordinary care. Under such circumstances, the mere fact that a collision has occurred and that some one has been injured does not establish actionable negligence, and the verdict-of the jury was clearly in harmony with the evidence. This being the case, the court was justified in granting the motion for a nonsuit upon the coming in of the special verdict, and the judgments and order appealed from should be affirmed.
Hirsohberg, P. J., concurred.
Judgments and order reversed and new trial granted, costs' to abide the event.