29 F. 336 | E.D.N.Y | 1886
It is plain enough that the libelant cannot recover against the D?* J. P. Witbeck, at whose stem he was towing in his boat. It is equally plain that he can recover against the Sylvan Grove. The Sylvan Grove was overtaking the Witbeck, and the Wit-beck, with the libelant’s boat astern, was in plain sight. The duty of the Sylvan Grove was to avoid collision with the libelant’s boat. If, as she contends, there was a change of course on the part of the Wit-beck, which brought her on a course crossing the course of the Sylvan Grove, then it was the duty of the Sylvan Grove to stop, on seeing such change, and, by porting her wheel, avoid running over the libel-ant in his boat. If she was at a proper distance from the Witbeck, there was no difficulty in doing this. If, however, as is more probable, the Sylvan Grove approached so near to the Witbeck, holding her course, that a shift of the Witbeck’s wheel, made to allow the Sylvan Grove to pass her to port, threw the Witbeck’s stern a little off shore, and thereby pulled the libelant a little off shore, and under the paddle-wheel of the Sylvan Grove, then the Sylvan Grove was in fault for approaching so near the Witbeck. The libel must therefore be dismissed as to the Witbeck, with costs, and the libelant must recover his damages of the Sylvan Grove. He had one of his arms broken, and he swore falsely that his boat was wholly destroyed. I give him nothing for the injury to his property. For his broken arm I give him $500.
Let a decree be entered for the libelant against the Sylvan Grove for $500, and costs.
