3 E.D. Smith 144 | New York Court of Common Pleas | 1854
So far as this appeal rests upon the ground that the verdict of the jury was against the weight of evidence, it cannot be sustained. Although the impression left upon my own mind, after a careful examination of the evidence, is, that the collision in question was caused by want of care or reasonable skill on the part of the plaintiffs; yet the evidence was conflicting, and if the question of negligence had been left to the jury, under a charge free from error, their verdict should be held conclusive on that question. But, for other reasons, the judgment must be reversed.
First. I regard it as the settled law of this State that, in such ) cases, the plaintiff cannot recover for probable loss of profits. Indeed, if the evidence were such as to fix, with a precision amounting to legal certainty, the amount of profits which would have been realized, I think they could not have been allowed; and it appears to be conceded that such is the rule,
Secondly. It is suggested that the judgment should not be reversed for this cause, but that at most we should correct the amount. We could do this by suffering the plaintiffs to retain their judgment for the amount of the repairs, which amount was admitted, if there was no other error; but it would be difficult for us, upon the evidence, to say how much of the passage money and freight, for the upward trip, should be allowed; and, besides, we do not think it would be just to confine the plaintiffs to the mere act of repairs; they were (if entitled to recover at all) entitled to have all their expenses, consequent upon the delay, which were made necessary by the injury. It may be, that the jury have not given too great an amount, but we deem it, in general, unsafe to attempt to modify a verdict when we cannot see the items themselves which have entered into the verdict. We could, however, safely give the plaintiffs an option to retain their judgment for a reduced sum, if they elected so to do, and I should be disposed to give them that option, had not the jury rendered their verdict upon the main
The judge charged the jury, peremptorily, that the statute of this state, requiring steamboats, when meeting, to go to the starboard, did not apply to vessels crossing the river; and that, if the plaintiffs’ boat sheered to the larboard, to go under the stern of the defendants’ boat, before the latter turned to starboard, it was the duty of the latter to have kept a straight course.
This instruction, in effect, took from the jury almost the whole question of negligence, which it was peculiarly their province to consider and determine.
Whether the statute in question applied to these two vessels or not, depended upon the course upon which they were respectively moving when they were meeting each other; or, perhaps, more properly, whether their courses were such that they could be said to be “ meeting ” each other at all. It did not at all depend upon the question whether they were “ crossing the river,” or not. If the course of both was in a direction crossing the river, the statute applied to them just as truly as if their course was “ up or down the river.” There was a conflict of evidence in relation to their course, and the maps show that there was room for this conflict. Some of the evidence rendered it in a high degree probable that the plaintiffs’ boat, coming out of her slip on the east side of the river, was on a northwest course towards the centre of the river upwards; while the defendants’ boat, bound for a point half a mile below Hoboken, coming out of her slip on the west side of the river, was on a southeast course across and downwards. If this were so, the statute plainly applied to both boats, and the turning of the plaintiffs’ boat to larboard was a plain violation of the statute, while the turning of the defendants’ boat was in obedience to its requirements. Indeed, if the course of the two boats (though not directly parallel and opposite to each other), was oblique to each other in contrary directions, the statute would still apply, and every reason for its application would exist. The inquiry for the jury was not whether the defend
Doubtless, when the course of one boat is at right angles to that of the other, the question of care or negligence must be governed by other considerations; and, if the words of the charge could be deemed to impart such a state of things by the words “ crossing the river,” a further objection to the charge would still exist, viz. that it was unqualifiedly and peremptorily true that, if the plaintiffs’ boat turned to the larboard before the defendants’ boat turned to the starboard, the defendants’ boat was in fault in not keeping her course.
Independent of the statute, the general rule of navigation, applied to steamboats, requires that, “ when steamboats on different courses must cross so near that, by continuing their courses, there would be risk of coming in collision, each vessel should put her helm to port, so as always to pass on the larboard side of each other.” This rule is subject to exception in circumstances of exigency, and unforeseen embarrassment, and unavoidable difficulty; but, of its general application in cases not covered by the statute, I have no doubt.
It was, therefore, proper for the jury to consider whether the plaintiffs’ boat, in turning to the left, was not in part in fault. Indeed, if there were no special circumstances found to justify a departure from the rule, I think she might properly have been declared in fault, as matter of law; and, if she was in fault in making this turn, and that turn contributed to the accident, she was not entitled to recover, although it may have been made a moment before the turning of the defendants’ boat to starboard. The defendants had a right to assume that the plaintiffs would observe the proper rule, and are not to be reckoned in fault, because the move of the plaintiffs’ boat was first if it was wrong.
I think the judgment must be reversed.
Judgment reversed.
