Schlotterer v. Brooklyn & New York Ferry Co.
78 N.Y.S. 202
N.Y. App. Div.
1902
Check Treatment
Hirschberg, J.:

The plaintiff’s evidence tended to show that while a passenger crossing the East river on one of the defendant’s steam ferry boats on the morning of February 9, 1898, she. was injured in a collision with another vessel. Her evidence further tended to show that there was a very dense fog at the time, and that the boat was proceeding at the usual speed without sounding the fog whistles required by the provisions of chapter 4 of the United States Laws of 1897, passed at the 55th Congress (30 U. S. Stat. at Large 99, art. 15). On the other hand the defendant’s evidence tended very strongly to show that no collision occurred on the day named, and the ver^ diet, if resting on the testimony alone, would be unassailable.

The court, however, under objection and exception, permitted the defendant to read in evidence a part of a complaint framed in a prior *332action brought by her guardian ad litem for the same accident,' in which a different day was stated as the date of the collision. The objéct of this was to contradict the plaintiff’s evidence as to the date of the occurrence, and for that purpose it was incompetgnt. (Geraty v. National Ice Co., 16 App. Div. 174, 181; Buffalo Loan, Trust & Safe Deposit Co. v. K. T. & M. M. A. Assn., 126 N. Y. 450, 456, and cases therein cited.) The guardian ad litem verified the complaint, but she was not present at the accident, and the plaintiff had neither verified nor read it, nor was she shown to-have been connected with its composition in any way. The admissions of the guardian under the circumstances were not competent evidence against the plaintiff.

The court was asked to charge that non-compliance with the statutory regulations referred to was prima facie evidence of negligence, to which request the court responded by - the statement that the jury might take that into consideration with all the testimony in the case. The request was precisely in accordance with the ruling in Lambert v. Staten Island R. R. Co. (70 N. Y. 104), and the plaintiff was entitled to the change. (See to the same effect McCambley v. Staten Island M. R. R. Co., 32 App. Div. 346.)

In the main charge the measure of care imposed on the defendant by law. was stated to be “ a high degree of vigilance and care.” The plaintiff requested a charge to the effect that the defendant owed to herthe utmost human skill, care, vigilance and foresight.” This was refused “ except as covered by the charge already made.” The result was to hold' the defendant to a less degree of care than, the law enjoins, which is the highest, and not merely a high degree. The proposition was not an abstract one, but related to conditions-which were undisputed, viz., the navigation óf a steam vessel carrying passengers through a dense fog in a crowded river. The ruléis well settled that the carrier of passengers in conveyances and vehicles propelled by steam is bound to use every, precaution which human skill, care and foresight can provide, and that this rule of the strictest diligence applies to steam navigation. (Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Cleveland v. New Jersey Steamboat Co., 68 id. 306; Loftus v. Union Ferry Company of Brooklyn, 84 id. 455; Coddington v. Brooklyn Crosstown R. R. Co., 102 id. 66.) What was said in Stierle v. Union Railway *333Co. (156 N. Y. 70) in no respect weakens the force of this rule of liability, nor was it intended to do so, as is apparent from the language used on the denial of the motion for a reargument of that case.. (Stierle v. Union Railway Co., 156 N. Y. 684.)

The judgment should be reversed and a new trial granted.

All concurred; Goodrich, P. J., on first ground stated in opinion.

Judgment reversed and new trial granted, costs to abide the event.