142 N.Y. 564 | NY | 1894
The defendants owned a wharf at Hunter's Point in the East river, near New York, in April, 1887, and the plaintiff's vessel struck a rock in the bottom of the river, about seventy feet from the wharf, while approaching the wharf with a cargo of lumber consigned to the defendants, and she sustained damage for which this action was brought. Upon the first trial of the action there was judgment of non-suit, which upon appeal was reversed. (66 Hun, 323.) Upon the second trial the plaintiff recovered judgment, which has been affirmed, and which is now brought under review.
The defendants chartered the plaintiff's vessel in November, 1886, to carry lumber from Charleston to their wharf. The vessel was to be under the control and management of the plaintiff's captain and crew, and his compensation was to be the price named for every thousand feet of lumber transported.
The plaintiff claimed to recover both on the ground that the defendants were negligent in allowing the rock to be in the approach to their wharf, and also that they had contracted to give him for the approach of his vessel to their wharf sixteen feet of water at all times of the tide: and the trial judge submitted the case to the jury upon both grounds, charging them that if they found either in favor of the plaintiff he was entitled to recover. Hence, unless the evidence was sufficient to sustain a recovery upon both grounds, the judgment must be reversed, as we cannot say upon which ground the verdict was based.
1. We do not think there was sufficient evidence to show that there was a contract on the part of the defendant to furnish the sixteen feet of water as claimed by the plaintiff. *567
He, as a witness for himself, testified: "When we were negotiating the charter, Parke asked me what the length of the vessel was; what she drew loaded. I told him that the vessel was 190 feet, and that she would draw between fifteen and sixteen feet. He said he wanted to know because he was about to make arrangements to have his dock dredged out. He said he would give me sixteen feet to go to the dock at all times of the tide." He admitted that he did not testify to this upon the first trial. Holmes, the broker who negotiated the charter party, testified that "they said we were going to have sixteen feet of water. The vessel could come in at any time and all stages of water. That was said by the firm in general conversation; I could not say what individual; it was principally Mr. Parke, part of the negotiation being with him and part with Mr. McClave." This evidence of the plaintiff and Holmes was contradicted by Parke and McClave. We think this evidence utterly fails to show a contract as to the depth of water. The contract which the parties were then negotiating was embraced in the charter party, and nothing is there found about the depth of water in front of the wharf. All the language used and the circumstances of the case forbid the inference that the defendants meant to bind themselves and guarantee that there should be sixteen feet of water at all stages of the tide. They were not asked by the plaintiff to give such a guaranty, and what they said were mere statements and representations, plainly not understood to constitute an agreement outside of the charter party. The parties were not engaged in making two contracts, but one which was contained in the charter party. The statements had reference to the dredging which the defendants expected to make. In Vroman v. Rogers
(
2. But whatever may be said of the contract ground of liability, we are very sure that the defendants cannot, upon the evidence contained in this record, be held liable upon the ground of negligence. As wharfingers they did not guarantee the safety of vessels coming to their wharf. They were bound only to use ordinary care to make the place in front of their wharf reasonably safe for vessels to approach and lie there. *569
(Vroman v. Rogers, supra; Smith v. Havemeyer,
36 Fed. Rep. 927; Carleton v. Franconia I. S. Co.,
A surveyor called as a witness by the plaintiff, who had examined and located the rock upon which the vessel struck, testified as follows: "The rocks which I have mentioned here are not I should judge part of the bottom of the East river; I should judge not from feeling of them; I should judge that they were something that fell in there; they don't seem very large; they were rather loose. When I speak of stone and also of rocks I do not mean the same thing; I indicate that some are smaller and some larger; the rocks are large. That is all I mean by that. I could not say how they came there. I could not tell you the size of them. They seemed to be a surface of three feet or more. I could measure over them and feel it go down; they do not move. I did not feel them tilt or move under the weight of my rod." From this description there is no certainty that the rocks had been there for any considerable length of time. They may have come there so recently that the defendants could not have discovered them by any degree of diligence. They covered but a very small space under a large expanse of water. Previous to the collision of the plaintiff's vessel with them they had never been heard of. They were, as we must assume, upon none of the charts of the river. The defendants had owned and used their wharf for twelve years, and during all that time neither they nor the men in their employ had heard of them. During those years from five hundred to one thousand vessels, many of them as large as plaintiff's vessel, and some larger, had gone in safety to that wharf, as we must assume, in all kinds of weather and at all stages of the tide. And the plaintiff's vessel had gone to the wharf twice before. The defendants had had the place in front of their wharf dredged out immediately after their contract with the plaintiff. Under such circumstances what reason had they to suppose that the approaches *570
to their wharf were not safe? What greater assurance of their safety could they have than that they had always been found adequate for all the vessels that came there during a series of years? They had employed a dredging company to dredge out the basin in front of their wharf. What more should they have done having no notice whatever of the presence of the rocks there? The case of the Calliope is quite in point, and so are the following authorities: Hubbell v. City of Yonkers (
There is a singular lack of proof that these rocks were in the approach to defendants' wharf. They were not in any channel which had to be used to approach the wharf. They were in the East river, and for aught that appears may have been in that part of the river used for general navigation. It does not clearly appear that the defendants had any control of the place where they were, or that they had any right to remove them. If they were in the pathway of general navigation, and not in a place necessary for approach to the defendants' wharf, then the plaintiff took the risk of navigation there as other vessel owners did, and for that, too, the case of the Calliope is an authority.
Our conclusion is that the judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except BARTLETT, J., dissenting.
Judgment reversed.