101 N.Y.S. 222 | N.Y. App. Div. | 1906
A single- question is presented for review upon this appeal, and that involves the charge made to the jury. The action was brought
It is conceded that the English admiralty and law cases hold that the tow is in command; that the tug is the agent or servant of the tow, so that the negligence of the tug is imputed to the tow, but it is urged that a different rule applies in the United States, though we are unable to find any adjudicated case which clearly meets the present situation, and we are inclined to believe that the law depends upon a question of fact, whether the circumstances are such as to make the tow the master and the tug the servant, or
This is but another way of saying that every man is bound to use ' that degree of care and skill which the circumstances of his situation demand, as a condition of recovery in the event of damages sustained through the negligence of others, and this, we apprehend, is the true rule of law in all cases of this character. If the tow is in a position to exercise any degree of care, it is bound to do so-; if'it is not, then the fact of its helplessness in the situation is evidence of a lack of contributory negligence, and it may recover upon showing the negligence of .the defendant constituting the proximate cause of "the collision. Mr. Justice Clifford, in The Galatea (92 U. S. 439), says: “ Owners of ships appoint the master and employ the crew, and consequently are, as a general rule, held - responsible fbr the-conduct of both in the navigation of the vessel. Exceptions exist to that rule in certain cases; as where the craft is one without sails or steam apparatus, or where the difficulties of the navigation make it necessary to employ a steam tug, and to turn over the control and navigation of the ship to the master and crew of the
It was conceded that it was not necessary to decide these questions in the case cited, but we are of opinion that the law as suggested in the above excerpt is in harmony with the weight of authority, and it is clearly in line with the tendency of the courts of this country in the matter of imputed negligence. In Little v. Hackett (116 U. S. 366) the court distinctly repudiated the English doctrine that one who trusts himself to a public conveyance is in some way identified with those who have cliarge of it, in such a way that he cannot recover unless the persons in charge might recover, and this is now generally regarded as the established law of this country.
While there is, perhaps, more of conflict, it is now regarded as settled in this jurisdiction that “ the true principle seems to be that when a person is injured by the negligence of the defendant and the contributory negligence of one with whom the injured person is riding as a guest or companion, such negligence is not imputable to the injured person ; while, on the other hand, it may be imputable when the injured person is in a position to exercise authority or control over the driver.” (7 Am. & Eng. Ency. of Law [2d ed.], 447, 448, and authorities cited in note 1 on latter page,) Indeed, it has been well said that there can be no such thing as imputable negligence except in cases where that privity which exists in law between master and servant and principal and agent is found. In order that the negligence.of one person be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim qui facit per alium, facit per se is directly applicable, and the mere fact that
While, perhaps, the facts as brought out on the trial did not leave .the situation entirely clear, we are of opinion that the charge of the learned trial court did not correctly state the law of the, case, and that for this reason there should be a reversal of the judgment and a new trial. As we understand the law of negligence, every man who is injured through the fault of another,, without fault on his own part, is entitled to a remedy, and if the plaintiff in this action, in hiring a seaworthy and competently manned steam tug to tow his scow, surrendered the navigation to the latter, under such circuinstances that no active duty was left for him to perform, then lie is entitled to recover, notwithstanding the concurrent negligence of the steam tug which was in charge of the tow.
The judgment and order appealed .from should be reversed and a new trial granted, costs to abide the event.
Hirschberg, R. J., Hooker, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the final award of costs.