28 N.Y.S. 50 | New York Court of Common Pleas | 1894
The main contention of the appellant is that the verdict was against the weight of evidence. Of the power and the
The action is for the value of a canal boat and cargo, lost at sea while in tow of the defendant’s tugs. The responsibility of the defendant is not as common carrier; but it is bound only to ordinary care and skill, and is liable only for the correlative degree of negligence. Caton v. Rumney, 13 Wend. 387; Alexander v. Greene, 3 Hill, 9; Wells v. Navigation Co., 2 N. Y. 204. The concession is that the defendant’s tugs were in all respects sufficient, and the tow properly made up; and as the competency of the men in control of the fleet, was not impeached by evidence, that, too, must be accepted as a fact in the case. The charge in the complaint is that plaintiffs’ loss was the effect of negligent navigation. Effort was made on the trial to show that the wreck of the boat was due to want of skill or of care in putting back from the fury of the storm; but this, as appeared by unchallenged proof, was the proper thing to do, and was done in the proper manner. The only fault imputed to the defendant, upon the evidence and recognized by the court, was that it ventured out with its tow in the face of a peril which no prudent seaman would have encountered. The critical point was as to the menace of danger at the moment when the master declined a refuge in the Rills,
It remains to examine appellant’s exceptions to the admission of evidence. We are of opinion that the witness Helson knew enough of the boat to testify of its condition, the value of his evidence being for the jury. Assuming, but not deciding, that the bill of lading was not competent evidence of the quantity of coal aboard, there is no available error in its admission, because the ground of objection stated was “that the action is for damages to the boat; and he cannot join with that an action for the coal of which he was simply bailee.” Had the specific objection been that the paper was not competent evidence of the quantity of coal, the offer might have been waived, and other proper proof produced. The avowed ground of objection was clearly untenable. A bailee for hire has a right of action for injury to property in his possession, and may recover the entire damage. 4 Lawson, Eights, Eem. & Pr. § 1733; Bliss v. Schaub, 48 Barb. 339. Especially has a common carrier the righ-t, since he is answerable to the shipper for any loss not the effect of vis major. Other exceptions are so obviously invalid as to dispense with special criticism. Judgment and order affirmed, with costs. All concur.