59 Barb. 67 | N.Y. Sup. Ct. | 1869
I am of opinion that the order of the special term should be reversed, and a new trial granted. The only question submitted to the jury was whether the defendant was guilty of negligence or want of skill in not taking the plaintiff’s boat single instead of double through the piers of the new bridge. The evidence very strongly tends to show that the defendant exercised at least ordinary care in towing the plaintiff’s boat in the. situation in which it was placed; and if there was any mistake, it arose out of the circumstance that the defendant chose to attempt the passage with two boats abreast. Accidents had happened when boats were towed singly, one behind the other, but perhaps it was a fair inference from the testimony that it would have been more prudent in this instance to detach the boats. This was the opinion of the plaintiff, expressed at the time, but the captain of the steamer thought otherwise, and the plaintiff, although
It is clear that the plaintiff was not obliged to be towed .in this -way. He was at liberty to decline the position assigned to him. The defendant was not a common carrier, and was not pbliged to take the defendant’s boat at all hazards. It was entirely a matter of contract. The defendant having performed part of it by towing the plaintiff’s boat to Oak Orchard safely, the question arose as to the propriety of towing single or double through the piers of the new bridge. It is said that the captain of the steamer was guilty of negligence or want of care or skill in not adopting the plan proposed by the plaintiff. Witnesses differed as to the safety of one plan over the other. It is impossible to know with certainty which is the safest plan:, although the jury had a right to find, on the evidence, that the one proposed by the plaintiff was the safest. Now it does not follow, I think, that the defendant was guilty of negligence or want of ordinary care in not adopting one plan rather than the other. ■ It was at most an error of judgment, for which the defendant is not liable. To make the defendant liable, there should be evidence to satisfy the jury that he or his servants were guilty of something more than an error of judgment. Negligence is a relative term, but want of skill is not evidence of negligence. There was no evidence of want of skill, unless it .arose out of the captain’s misjudgment in a matter where experienced men differed in opinion. If the danger was apparent, and the captain of the steamer recklessly or heedlessly ran into it, it would be sufficient evidence of gross negligence to make him liable. But it would then be a question whether the plaintiff himself was not guilty of negligence in not withdrawing from the tow. But waiving this question, I think the jury were misled by the charge into the belief that it was negligence in the captain of the steamer, in not adopting what they should believe
On the whole, I think a nonsuit should have been granted, and for the error of the judge in denying it, a new trial should be granted, with costs to abide the event.
Bacon, Mullin and Morgan, Justices.]
