2 Wend. 452 | N.Y. Sup. Ct. | 1829
The plaintiff’s claim to damages is founded upon the supposed negligence of the defendants’ agents, the officers of the boat; and the question is, whether, from the facts in the case, such negligence is proved. The defendants’ counsel assumes, as the common law of vessels navigating .the Hudson river, that the vessel having a favorable wind is bound to give way, so as to avoid every other vessel she meets, and permit them to pursue their course without deviating from their track. How such a regulation has been established does not appear; nor is the existence of such a usage shewn in the case. But suppose such a practice to have prevailed, it must have been founded on the fact that a vessel with a fair wind is more under the control of her < fficers and crew than a vessel which has not the wind, and, therefore, if the officers of the first vessel do not avoid collision when it is completely in their power to do so, it is evidence of gross negligence at least. The reason of this rule, (if such a one exists,) is applicable to steam boats at all times, as they have always a favorable wind, or rather a propelling power, equal to a favorable wind, and which renders the vessel equally manageable as one with a favorable wind, and, indeed, more so, as it appears in evidence that it was in the power of those who managed the engine not only to stop the vessel’s progress instantly, but also to back her, or give her a retrograde movement.
The real question is, whether the officers of the steam boat were not guilty of negligence in refusing or neglecting to exercise the power they possessed, which would have prevented the injury. The boat was perfectly under the control of its officers, the sloop was not; the officers of the boat did not endeavor to avoid the collision which they might have done either by backing their boat or by going on the west side of the sloop, where there was room enough and water
New trial denied.
