245 N.Y. 91 | NY | 1927
This action was brought by the administratrix of the estate of Martin Raolaslovic to recover damages for his death. Raolaslovic came to his death through drowning in the waters of New York harbor. It is claimed that he was drowned through the negligence of his employer, the defendant, the New York Central Railroad Company, or its agents and servants. After a trial of the issues before a jury a verdict awarding damages to the plaintiff was returned. The judgment entered upon the verdict was reversed by the Appellate Division and the complaint dismissed. From the judgment of reversal and dismissal this appeal was taken.
Martin Raolaslovic was first deckhand upon a steam tug known as New York Central Tug No. 3. The tug was making a trip from Weehawken, New Jersey, down river to pier 38, New York city. The tug was 105 feet long. To its port side there was strapped a barge 100 feet long. The bow of the barge projected forward of the bow of the tug, while the stern of the tug projected aft of the rear of the barge. Fenders eighteen inches in diameter hung from the opposing gunwales of the two boats. The space separating the two vessels was, therefore, at least eighteen inches amidships, while forward and aft, owing to the sheering sides of the tug, the separation was greater, increasing to four or five feet. The tug steamed across and down river in a strong ebb tide until it came to a point opposite pier 38 and within two hundred feet thereof. At this point Captain Ripley, the captain and skipper of the tug, put his wheel to starboard to swing the tug upstream and against the tide in order to bring the barge alongside the pier on the south. Raola
Experts testified to the manifest truth that a propeller,
That nautical men in their speech frequently confound the backing of a vessel with a reversal of its engines, stating that a boat is backed when meaning merely that its engines are reversed, is a fact which must be borne in mind when the proof is examined. Captain Ripley testified that when he first heard Nikoletich cry, “ Martin overboard,” he swung bis wheel to starboard in order to turn the tug’s stern to starboard away from Raolaslovic; that the tug was moving about three miles an hour; that he saw Raolaslovic about twelve or fourteen feet from the stern of the tug and to the north; that he gave
•The witness Nikoletich gave definite testimony that the tug was moved astern. He was asked: “ Well, when you wanted to throw him the fine from the barge, did the tug keep going ahead, did it stop or did it go back? ” He answered: “It went back.” He said of Raolaslovic: “ I said he turned himself over. He was going to get away from the barge when they started to back up. He see the barge was coming on top of him, and he was going to get away, to swing himself over.” Again he said: “And I see he was trying to get away from the barge when he backed the tug, when he see the barge was coming on him — on top of Martin — then he turned over on the quick side, and I jumped down in the tug in the stern, and George Rudman hollered to the captain: 'He is gone,
It is said that the captain of the tug, flurried by an emergency, merely made an error of judgment in choosing the course which he pursued, and, therefore, as a matter of law, was not negligent. The answer is that the captain himself repudiated the idea that in a moment of excitement he did the wrong thing. He asserted that he was guilty of no error whatsoever; that it was proper to reverse the engines for a moment; that it would have been highly improper to back the tug to the rear; that “ nobody would do it; ” and he stoutly maintained that he did not commit that gross error of seamanship. Notwithstanding his testimony, upon the other proof given, the jury was entitled to believe, as we have said, that he did back the tug down upon or toward Raolaslovic. In this view of the case, the doctrine that one acting in an emergency is not to blame for an error of judgment could have no application. The captain would stand self-condemned, guilty of unseamanlike conduct, of an act which “ nobody would do,” and, therefore, of actionable negligence.
The respondent also asserts that the captain of the tug was engaged in making a rescue and should not be
Several experts testified that, regardless of whether the tug itself was backed, a reversal of its propeller, with a man overboard withm fifteen feet of the tug’s- stern, constituted bad seamanship. Thus the witness, Captain Milliken, said: “It is well known amongst seafarers generally that if a man is astern of a vessel, if the wheel is moved he would be drawn toward or under the vessel, - and I would consider it very poor seamanship in any event to reverse the engines of any sMp, unless there was sometMng ahead that you might run into, if a man fell overboard.” Obviously, a suction is set up toward a vessel’s stern by a reversed propeller, regardless of whether the vessel moves back or still goes forward. The suction in the former instance creates a greater pull than m the latter, upon a man overboard, merely because the propeller is brought nearer. If, however, the man is sufficiently near he will be drawn under whether the boat itself is backed or otherwise. Captain Ripley was at all times conscious of the danger to Raolaslovic from the
In support of the dismissal the respondent cites Wynn v. Central Park, N. & E. River R. R. Co. (133 N. Y. 575); Bittner v. Crosstown Street Railway Co. (153 N. Y. 76); Stabenau v. Atlantic Avenue R. R. Co. (155 N. Y.
The Appellate Division reversed the judgment on the law and facts and granted a dismissal. We cannot, therefore, reinstate the verdict, but must order a new trial. (Maguire v. Barrett, 223 N. Y. 49.)
The judgment of the Appellate Division in so far as it dismisses the complaint should be reversed and a new trial granted, with costs to abide the event.
Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ., concur.
Judgment reversed, etc.