62 N.Y.S. 264 | N.Y. App. Div. | 1900
This case has been tried four times, and has been before us three times. 10 App. Div. 198, 41 N. Y. Supp. 901; 19 App. Div. 139, 45 N. Y. Supp. 995; 34 App. Div. 293, 54 N. Y. Supp. 293. The facts disclosed upon the fourth trial now under review are substantially the same as they were upon the three former trials, and they are sufficiently stated in the reports of the previous appeals. The additional evidence adduced upon the last trial does not materially affect the questions of law now presented. The practical question upon the present appeal is whether the insured vessel was seaworthy at the inception of the voyage. She certainly was seaworthy when the policy was issued. If she was also seaworthy when the voyage commenced, there can be no doubt that the loss
There is another branch of the case to which the latter observations are equally applicable. We refer to the claim of unseaworthiness because the water, which got into the starboard alleyway of the vessel through the port, could not be brought under the effective operation of the pumps, for the reason that the latter did not reach this particular locality. The evidence sufficiently established that the vessel was well fitted with pumps, adapted to all ordinary conditions, or to such as could reasonably be anticipated; and, if they were inadequate to relieve the vessel upon the occasion and under the circumstances in question, it was because the occasion and the circumstances were extraordinary, and such as 'could not reasonably have been anticipated. At least, it was competent for the jury to
The exceptions to the charge and to the refusals to charge need not be specially considered. They are based largely upon the position which the defendant took with regard to the effect of the evidence, and they were adapted to the clear elucidation of that position. If the learned justice was wrong in not dismissing the complaint, his error is emphasized by his treatment of these requests. If, however, he was right,—as we think he was,—his charge was correct, and his treatment of the requests unobjectionable.
We have gone over all the points made by the appellant, and we find no error which would warrant another reversal of the judgment in this protracted litigation. It follows, from our view of the inferences properly deducible from the facts, that the comments thereon made by the plaintiffs’ counsel in his summing up to the jury were entirely admissible and proper. Indeed, the only doubtful rulings which we have been able to discover upon this or any other question in the case are rulings to the prejudices of the plaintiffs.
The judgment and order denying the defendant’s motion for a new trial should be affirmed, with costs. All concur.