180 A.D. 593 | N.Y. App. Div. | 1917
The trial was before the court and a jury. The plaintiff was nonsuited. The question presented by the appeal is, therefore, whether the evidence adduced in behalf of plaintiff was sufficient to require the submission of the case to the jury. Under a well-settled rule which requires no citation of authorities the evidence cannot be weighed by the court on review of a nonsuit for that is the function of the jury, and, therefore, the plaintiff is entitled to the most favorable inferences that may legitimately be drawn from the evidence.
The plaintiff prior to the 6th day of December, 1916, pursuant to a contract with the city of New York had laid a twelve-inch water main from the foot of One Hundred and Fortieth street, borough of Manhattan, New York, along the bed of the East river to North Brother island, which was the vicinity of a well-known pipe crossing of which a notice was
The Alvin had been anchored at this point all day. It was conceded that she was anchored in navigable waters of the river, but not in the channel or a fairway.
The plaintiff’s contract with the city required that the work should be performed in accordance with the provisions of a permit granted by the War Department on the 7th day of February, 1913. The permit authorized the laying of the water main and provided, among other things, that there should be no unreasonable interference with navigation while the work was in progress and that the grantee thereof should be liable for all injury to vessels; that in order to reduce the danger of such injury the grantee should so far as required by the local United States engineer “ erect suitable signboards or other warning signals to notify vessels of the work either in progress or after completion.” The pilotage rules issued by the United States Department of Commerce and Labor provided that the creation of any obstruction not affirmatively authorized by law to the navigable capacity of any waters in respect to which the United States has jurisdiction is prohibited and that no vessel should occupy a permanent berth in the anchorages except as provided for in the anchorage rules and regulations and that “ vessels which are moored or anchored, and engaged in laying pipe or operating on submarine construction or excavation shall display by day, not less than fifteen feet above the decks, where they can best be seen from all directions, two balls not less than two feet in diameter, in a vertical fine not less than three feet and not more than six feet apart, the upper ball to be painted in alternate black and white vertical stripes six inches wide, and'the lower ball to be painted a solid bright
The trial court dismissed the complaint on the ground that the defendant could not have foreseen that a collision with the Alvin would cause the damages for which a recovery is sought inasmuch as there was no signal as required by the pilotage rules indicating that the Alvin was engaged in submarine work and it could not have been foreseen that such damages would flow from a collision with the Alvin. The Appellate Term affirmed without opinion and denied a motion for a reargument or leave to appeal; but thereafter published an opinion stating that the affirmance was on the ground that the “ plaintiff had failed to furnish sufficient evidence to overcome the presumption of negligence arising from the conceded failure to comply with the rules and regulations of the Pilot Law.”
The jury might have found and doubtless would have found that the collision was caused by the negligence of the master of the tug towing the barges. The learned Appellate Term was in error in holding that the violation of the pilotage rules, if they were applicable, created a presumption that plaintiff was negligent and, therefore, not entitled to recover. That is not the rule in this jurisdiction where the common law with respect to negligence and contributory negligence as administered here governs, nor is it the rule in the Federal
It is not entirely clear that the pilotage rule applied to this launch in the circumstances or to this work (See Lambert v. Staten Island R. R. Co., 70 N. Y. 109; Matter of Rouss, 221 id. 91), but if it did the object of the rule was to protect the submarine structure and failure to comply therewith was not the proximate cause of the collision and did not afford the defendant immunity from the consequences of negligently running into the Alvin, of the presence of which the jury would have had a right to find it had ample notice both from its position in the river plainly indicating that it was at anchor and from the flags upon it and the divers’ pump, all of which the jury might have found were or should have been seen by the captain of the tug who had some 1,700 feet of navigable water in which to maneuver. (See Hoffman v. Union Ferry Co., supra; Phoenix Const. Co. v. Cornell Steamboat Co., supra; The Lucille, 169 Fed. Rep. 719; New York Central No. 18, 230 id. 299; Austin v. New Jersey Steamboat Co., 43 N. Y. 75; The Pocahontas, 235 Fed. Rep. 116; The Wrestler, 232 id. 448, 450; The Yucatan, 226 id. 437.)
It follows, therefore, that the dismissal of the complaint cannot be sustained upon the theory that the plaintiff was guilty of negligence as matter of law in failing to comply with the pilotage rules. It is contended, however, that the damages for which a recovery is here sought could not have been foreseen and that, therefore, the defendant is not liable therefor. The damages directly and immediately resulted from the collision, and if that was due to the negligence of the defendant I think it is liable regardless of whether or not it could or should have foreseen that the Alvin was engaged in submarine work or that there was material suspended
It follows that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial granted, with costs in all courts to appellant to abide the event.
Clarke, P. J., Dowling, Page and Shearn, JJ., concurred.
Determination appealed from and judgment reversed and a new trial ordered, with costs in all courts to the appellant to abide the event.