70 N.Y. 104 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *106 The evidence was sufficient to authorize the submission to the jury of the question of the negligence of the persons in charge of the Middletown. There was much conflict in the testimony as to the position of the light on the sail-boat and as to the point whether it could have been seen from the Middletown in time to have avoided the collision, and also as to the speed of the ferry-boat. It was *108 the province of the jury to determine the disputed questions of fact, and to pass upon the credibility of the witnesses. The evidence, on the part of the plaintiff, tended to show that theMiddletown was proceeding at an unusual rate of speed, and that the light on the sail-boat was seen by persons on the ferry-boat in time, if it had been observed by the lookout on that vessel, to have prevented the disaster. It was the plain duty of the master of the Middletown to keep a vigilant lookout from his vessel, and to exercise great caution under the circumstances. The jury have found that there was negligence on the part of theMiddletown, and with this finding we cannot interfere.
The principal questions in the case arise in respect to contributory negligence of the persons in charge of the sail-boat, and upon exceptions taken by the defendant to the refusal of the judge to charge certain propositions presented by the defendants' counsel bearing upon the point. The negligence of the deceased is claimed to consist, first, in anchoring the sail-boat at the place where she was anchored; second, in omitting to exhibit a proper light, and third, in not making proper efforts to avoid the collision when the danger was apparent. Leaving out of view the regulation of the board of harbor masters in respect to the anchorage of vessels, the question whether the anchoring of the sail-boat at the place where she was anchored, was an improper and negligent act, was one of fact and not of law, and to be determined by the jury upon all the circumstances of the case. The anchoring of a vessel at an unsafe and improper place is a negligent act, The MarciaTribon, (2 Sprague, 17); The Scioto, 2 Ware, 366); Strout v.Foster, (1 How. [U.S.], 89), and if the vessel so anchored is run into and injured by another vessel, and the improper anchorage was a proximate cause of the injury, no action upon the principles of the common law lies to recover compensation. And the same rule prevents a recovery for a personal injury to persons in charge of the anchored vessel resulting from the collision. But in the absence of a statutory or other regulation on the subject, *109 the court cannot determine, as a question of law, that a particular place of anchorage is unsafe and improper.
In this case it is alleged that it was negligence in those in charge of the sail-boat to anchor at night in the customary path of the ferry-boat. The place of the collision was from 100 to 250 feet off the north-westerly point of Governor's Island, and the Staten Island ferry-boats were accustomed to pass this point on their trips, within a track which varied, as some of the evidence tends to show, from 300 to 500 feet in width, and this was known to Thompson and the deceased. But the ferry-boat had no right to the exclusive use of this part of the channel. The sail-boat could lawfully use it, and anchoring there to await a favorable turn in the tide, with a light set, on a night not dark, and when lights could be seen for miles, was not per se negligence.
It is claimed however by the defendant that anchoring in that place was forbidden by the rules and regulations of the harbor masters. These rules provide that no vessel shall be anchored within certain specified limits, and there is some evidence to show, although the fact is very doubtful, that the sail-boat was anchored within the prohibited district.
The defendant requested the court to charge the jury "that if they find that the sail boat was anchored in a place prohibited by the regulations to be used as a place of anchorage, and that its being so anchored contributed to the collision, they must find for the defendant." The court refused to charge as requested, and the defendant excepted. It was decided by the court in Hoffman v. Union Ferry Co. (
But the defendant's difficulty on this branch of the case is, that the regulation of the harbor masters, to which we are referred, does not by fair construction, having in view the authority possessed by them under the act Chap. 487, Laws of 1862, in pursuance of which the regulations purport to have been made, apply to small boats, such as the sail boat in question. The word vessel is used in the regulation, and in common parlance, small row boats, or sail boats, are not included in this designation, and a reference to the act of 1862 will show that the powers conferred upon the harbor masters relate to the control of the wharves and piers, and the regulation of vessels engaged in foreign and domestic commerce, and tugs, barges and lighters. We do not intend to define the limit of their powers, but we are of opinion that the word vessel in the regulation cannot be construed in its widest signification so as to include the small sail and row boats which throng the harbor of New York. (See Farmers' Delight v. Lawrence, 5 Wend., 564.) This request, therefore, was properly refused.
The alleged negligence in respect to the omission of the sail boat to show a light, was the subject of much controversy on the trial. The master and crew of the Middletown testified that there was no light forward on the sail boat, and that no light was visible until the moment of the collision, and that the light at the time was in the bottom of the boat, Thompson, on the other hand, who was in the sail boat, testified that a lantern was placed forward of the mast, upon one of the seats, and in a position where, as other witnesses, passengers on theMiddletown, testified, it could be plainly seen from that vessel in time to have prevented this disaster.
The defendant's counsel asked the court to charge the jury, "that if they find that the failure to exhibit a light at least twenty feet above the deck, and from the taffrail, contributed to the collision, they must find for the defendant." The *111 court refused to charge this proposition, and the defendant excepted. Section 12, title 10, chapter 20, part 1 of the Revised Statutes provides that whenever any vessel navigating that part of the Hudson river north of the battery, or navigating Lake Champlain "shall be at anchor in the night time the master of such vessel shall cause her peak to be lowered, and shall cause a good and sufficient light to be shown in some part of her rigging at least twenty feet above her deck, and from her taffrail, under a penalty of fifty dollars, etc." This provision was by chapter 314 of the Laws of 1829 extended and applied to the harbor and bay of New York. The sail boat did not have a light as provided in this statute, and we think the statute does not apply to a boat of this description. The sail boat was open and undecked, and it had no rigging twenty feet above the deck, or above the point where the deck would have been if it had been constructed with one.
It appears by reference to the other provisions of the title of the Revised Statutes containing the section referred to, that the legislature was dealing with vessels engaged in the business of navigation, and the conditions imposed in section 12 are not such as can usually be complied with by the small sail or rowboats used on rivers and lakes, or in the bay of New York.
The statutes of the United States require that "open boats when at anchor or stationary shall exhibit a bright white light," (U.S.R.S., 822, rule 13,) and there is no other requirement on the subject. If the testimony on the part of the plaintiff was true, this was complied with, and there is no other statute applicable to the case.
The jury have negatived the claim that the persons in the sail boat were negligent in not cutting the anchor rope, and it was for the jury to say whether under the circumstances they did all that could have reasonably been required of them to avoid the collision.
We think there was no error committed on the trial, and that the judgment should be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed. *112