McLean v. Schuyler Steam Tow-Boat Line

4 N.Y.S. 790 | N.Y. Sup. Ct. | 1889

Landon, J.

The plaintiff’s negligence caused his schooner to be thrown upon the deiendant’s hawser, with which defendant, by means of the steamboat Connecticut, was towing a fleet of canal-boats down the river. The schooner was between the canal-boats and the defendant’s steam-boat. It was plaintiff’s duty to be extraordinarily diligent in getting off the hawser. It was defendant’s duty to use ordinary care to do no unnecessary injury to the schooner in assisting in getting her off the hawser. Mark v. Bridge Co., 103 N. Y. 28, 8 N. E. Rep. 243. Upon the facts found by the referee, the defendant did not use ordinary care to avoid doing unnecessary injury to the schooner, but proceeded to pull her off, after being told that the hawser was between the stern-post and the rudder, and when it was obvious that without removing the hawser from that position the stern-post would be torn off, and the schooner otherwise in j ured. The finding of the referee is within the evidence, and we see no reason to dissent from it.

The negligence of the plaintiff, by which his schooner fell into this place of danger, and became a nuisance to the defendant, was not the proximate cause of the injury to the schooner. That was caused by the defendant’s reckless disregard of the consequences of proceeding to pull the schooner off the hawser without taking the precautions known to be necessary in order to avoid doing her unnecessary injury. True, the referee finds that the schooner’s condition was “desperate” when lying on the hawser between the fleet of canal-boats and the steam-boat propelling them. But that desperate condition consisted in the plaintiff’s inability to extricate his schooner without the proper precaution and assistance on the part of the men in charge of the steam-boat. The proper things to do were suggested by the plaintiff. They would involve a small delay on the part of the defendant. This delay was refused, and the defendant pulled off the schooner in reckless disregard of the consequences reasonably to be apprehended, and which witii ordinary care might have been avoided.

The objection to the question put by the defendant to the captain of the steam-boat, whether in his opinion anything could have been done by him or his steam-boat better than was done, was properly sustained. The negligence charged against the defendant consisted of the simple act of pulling the schooner off the hawser under such conditions as must tear the rudder from the schooner. Ho expert knowledge was needed to understand so simple a situation and its consequences, and the substitution of an opinion for the facts would manifestly be improper. The judgment should be affirmed, with costs. Ail concur.