290 F. 382 | 2d Cir. | 1923
(after stating the facts as above). We agree with the District Court in concluding that any such contact as that testified to by Worth could hardly have caused the damage complained of. Those familiar with fenders of the kind referred to will at once appreciate that, if the maneuver was as described by Smith .and the contact as described by Worth, it would be indeed strange if the dent was made by the New Yorker as a result of the contact of the fenders “in a slanting way.” There was no testimony as to a direct impact nor any other collision of a kind likely to cause the damage. In view of the strong current, the movement described by Smith was concededly properly planned, but the complaint is that his execution was faulty.
Counsel for appellant state that their concern is not so much the comparatively small damage to the Maryland as the erroneous principle which they contend was laid down by the District Judge in respect of holding a fireboat to a. lesser degree of responsibility than would be placed upon some other craft not charged with the official duty of hastening to the fire and they cite Workman v. City of New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314, and other cases in support of this contention. The question in the Workman Case was whether or not the municipality was immune from liability for inj'ury done by a fireboat. The Supreme Court held that it was liable, if guilty of negligence. What is negligence is usually a question of fact to be determined by the duties involved and the surrounding facts and
“But, while it is true that the emergency of fire was am element to be considered m determining whether or not those vn charge of the fireboat were negligent on the occasion in question, since negligence is relative — that is, depends upon whether there was an absence of the care which it was the duty to exercise under the particular circumstances — it does not follow that the emergency of fire exempted from the exercise of such due care as the occasion required towards property which was in the path of the fireboat as it approached the slip for the purpose of getting into a position where it might assist in extinguishing the fire in question.”
It may happen, therefore, that contact with another craft which would not be excusable under ordinary circumstances may be excusable in the case of a fireboat, in the light of the maneuver, its execution, and the speed required because of the fire danger. It is never possible to lay down a rule of accuracy or definiteness when dealing with negligence. Whether there is negligence is a question of fact, determined in each case, of course, in the light of the applicable principles of law. A fireboat, in some circumstances, might be guilty of negligence, and in other circumstances might be without fault. The test must be found in the facts and .circumstances of the particular case under consideration. In the case at bar, the maneuver, was right,. ' and if, for the purpose of argument, it be assumed that the impact was somewhat more severe than the testimony discloses, nevertheless we think that, in view among other things, of the necessity of haste cast upon the pilot in his duty of bringing the fireboat speedily to its destination, there was no negligence.
Decree affirmed.