22 N.Y.S. 749 | New York Court of Common Pleas | 1893
The action is by an administratrix for damages from the death of her intestate, who, by the alleged negligence of the defendant, fell overboard from its steamer, a British vessel, in the bay of Savanilla, United States of- Colombia. That the actionable quality of an alleged wrong depends upon and is determined by the municipal law of the place of the transaction; that in a suit here, proceeding upon an alleged wrong committed abroad, the court, in the absence of evidence to the contrary, will presume the coinmon law to be the law of the locality; thát if, by the principles of the common law, such alleged wrong be not the subject of an action for private redress, the plaintiff, in order to recover," must prove it to be so by the law of the place of the transaction; that by the common law the death of a human being is not the subject of a civil action, and that, by consequence, whoever seeks reparation in our courts for the death of another abroad, must establish by affirmative evidence that such death is an actionable wrong by the law of the place of the occurrence,—are now elementary principles in the jurisprudence of the state of New York. Whitford v. Railroad Co., 23 N. Y. 465; McDonald v. Mallory, 77 N. Y. 546; Leonard v. Navigation Co., 84 N. Y. 48; Wooden v. Railroad Co., 126 N. Y. 10, 26 N. E. Rep. 1050. Incontestably the decision of the appeal, in one of its aspects, is suspended upon the application of these principles to the case in controversy. Counsel for the respondent so conceded on the trial, and accordingly, maintaining that the locus of the transaction was a British vessel on the high seas, and invoking the recognized rule that the law of the flag is the law of a vessel so situate, (McDonald v. Mallory, supra,) he introduced in evidence Lord Campbell’s act, by which the death of a human being by the wrongful act of another is made the subject of a' civil action. The appellant challenged the contention, and, assuming the position that, as it appeared by uncontroverted proof that the act in litigation was committed within the territorial jurisdictior of the United States of Colombia, and as no evidence was adduced that by the law of that country the alleged wrong is actionable, he moved to dismiss the complaint. We are of the opinion that thground upon which the appellant stood is impregnable, and that tlm learned trial judge erred in denying the motion. When the plaintiff rested it was in evidence by the log book that at the time of the acd dent the vessel was in the harbor of Savanilla, where the port authorities were received, where passengers and mails were discharged, and where the cargoes were delivered and taken in. A witness for the plaintiff testified: “I couldn’t tell how far the shore was from the ship when this accident happened. I couldn’t calculate the distance. W e could see the shore from the ship, but I couldn’t tell the distance. I should think it wouldn’t be three miles.” On the part of the defendant the evidence as to the locality of the vessel was, that "she was in the bay of Savanilla, a mile and three quarters or two miles from the shore.” Upon this uncontested state of fact, the question was one of law for decision by the court
The act upon which the suit proceeds having been committed abroad, the burden was on the plaintiff to prove it an actionable wrong, and, as she produced no evidence in support of the proposition, the complaint should have been dismissed. Assuming, however, that at the time of the accident the vessel was on the high sea, and so subject to the law of England, which authorizes an action for the death of a human being, still, upon a familiar principle, the law of the forum regulates the burden of proof and the quantum of evidence requisite to a recovery. It is a settled rule in the jurisprudence of this state that to maintain an action for an injury by the negligence of another it is incumbent upon the plaintiff to establish the fact that, no negligence of his own contributed to cause that, injury. Proof of the fact need not be positive, but may be circumstantial; still the nonnegligence of the plaintiff must result as the rational conclusion from adequate evidence. It cannot rest in surmise or conjecture only, nor is it shown when the circumstances are equally consistent with its presence or its absence. These'
Again, assuming negligence as the cause of the injury, it was the negligence of a fellow servant. The relation of master and servant is not determined by gradation of rank or superiority, (Wright v. Railroad Co., 25 N. Y. 562, 565,) but by the nature of the act, the cause of the injury. If that act be one the performance of which is incumbent on the master, the delegation of it to a servant does not discharge the master from liability for its negligent performance.. If act be one within the duty of a servant, its negligent performance is the negligence of a fellow servant, and the master is exempt from liability. Crispin v. Babbitt, 81 N. Y. 516; McCosker v. Railroad Co., 84 N. Y. 77; Cullen v. Norton, 126 N. Y. 1, 26 N. E. Rep. 905. It was the defendant’s duty as master to furnish the decedent a safe place in which to work; but “the place which the master furnished was the ship itself,” (Hogan v. Smith, 125 N. Y. 775, 26 N. E. Rep. 742,) and as the company had supplied iron doors to bar the gap through which it is supposed the decedent fell, it had discharged its duty in protecting him against the peril incurred. It is argued, however, that the negligence which caused the injury was the omission to close the doors or otherwise prevent passage through the port, but to do this was the duty of a servant, and the master is irresponsible for its nonperformance. Hogan v. Smith, 125 N. Y. 774, 26 N. E. Rep. 742; Cullen v. Norton, 126 N. Y. 1, 26 N. E. Rep. 905; Harvey v. Railroad Co., 88 N. Y. 481; Steamship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. Rep. 397; Ford v. Railroad Co., (N. Y. App.) 22 N. E. Rep. 946; Hudson v. Steamship Co.,
