New York Harbor Towboat Co. v. New York, L.E.&W.R. Co.

• Citation: 148 N.Y. 574,42 N.E. 1086
• Parties: NEW YORK HARBOR TOWBOAT CO. v. NEW YORK, L. E. & W. R. CO.
• Decision Date: 25 February 1896
• Court: New York Court of Appeals

148 N.Y. 574

42 N.E. 1086

NEW YORK HARBOR TOWBOAT CO.

v.NEW YORK, L. E. & W. R. CO.

Court of Appeals of New York.

Feb. 25, 1896.

Appeal from supreme court, general term, First department.

Action by the New York Harbor Towboat Company against the New York, Lake Erie & Western Railroad Company, to recover for damages to a steamboat resulting from a collision with defendant's ferryboat. A judgment entered on a verdict in favor of plaintiff, and an order denying a motion for new trial, were affirmed by the general term (27 N. Y. Supp. 745), and defendant appeals. Reversed.

George Bethune Adams, for appellant.

Edward H. Hobbs, for respondent.

BARTLETT, J.

Without reference to the circumstances concerning which the evidence is conflicting, a few of the general and undisputed facts may be stated, in order to disclose the situation which resulted in the collision between the plaintiff's steamboat, Emmons, and the defendant's ferryboat, Pavonia. The Pavonia left her Jersey City slip on the morning of October 27, 1884, at a few minutes after 7 o'clock, bound for Chambers street, New York. It was slack water, with no wind, and she laid her course direct for the New York slip, steering in a southeasterly direction. The Emmons had lain, the night before, at a pier in the North river, in the vicinity of King street, New York, a considerable distance above the place of collision, and started down the river for the Battery, at about the same hour the Pavonia left Jersey City, taking her course at about 300 feet outside of the pier heads. When off Harrison street, or a little below it, a short distance north of the ferry slip at Chambers street, the engineer notified the pilot that the vessel needed fresh water, and, there being a hydrant at Harrison street, it was decided to return to that place and procure a supply. The Emmons' helm was ported, which turned her head off shore, and she was kept on the swing with the helm hard a-port, running at from 9 to 10 miles an hour, until the collision occurred.

It is undoubtedly true that, if the Emmons had held her course to the Battery, she would have passed ahead of the Pavonia, and there would have been no collision. The accident was due to the maneuver whereby the Emmons sought to turn to starboard, and return to Harrison street, which she had passed. The conflict in evidence is in regard to the precise position of the respective vessels just prior to and at the time of the collision, and as to which pilot was guilty of negligence. On the part of the plaintiff, it is claimed that the Emmons, swinging to starboard on a port helm, did not at any time cross the course of the Pavonia, when steering for the New York slip, and that the collision was due wholly to the fact that, for some strange and unexplained reason, the pilot of the Pavonia, a few seconds before the collision, put the helm to starboard, swung the head of his vessel out of her course, and up stream to port, thus coming aboard the Emmons, the Pavonia's port bow striking the Emmons' port wheel. On the part of the defendant, it is contended that the Emmons did pass over the Pavonia's course, and the pilot of the latter, seeing her do so, considered her out of the way, ceased to watch her, and devoted his attention to making his slip. His attention was recalled to the Emmons a few seconds later by one whistle, when he observed she was swinging to starboard, and seeking to cross the bow of the Pavonia. He answered the whistle by a single blast; but the collision was so imminent, he stopped and reversed the engines, keeping his helm amidships. At the moment of the collision the Pavonia was under but little headway, and her pilot had done everything that good judgment could dictate, acting in extremis, in a moment of supreme peril.

If the disposition of this case depended on the verdict of a jury, after considering these disputed questions of fact, we could not interfere with the judgment entered thereon, even if we should have reached a different conclusion than that arrived at by the jury. We are, however, of opinion that there was no question for the jury, and that, on the undisputed facts, as disclosed by the plaintiff it was guilty of contributory negligence under the well-settled rules of navigation. This brings us to consider the situation of the two vessels within less than a minute of the collision, when only 800 or 1,000 feet apart, and each running at a speed of from 9 to 10 miles an hour. We will quote from the brief of the learned counsel for the plaintiff in describing this situation: ‘The claim of the plaintiff is that the Emmons commenced to turn about when opposite the foot of Harrison street, when the Pavonia was beyond the middle of the river, and that she never got below the line connecting the ferry slips, and that, at the time she blew her whistle, indicating that she was going to keep to the right, she was 600 feet from the shore, headed northwest, and the ferryboat was 800 to 1,000 feet distant from the Emmons, headed southeast, and the course of the two vessels was then ‘head and head, or nearly so,’ or they were approaching each other in an ‘oblique direction.” This whistle, given by the Emmons, and referred to by plaintiff's counsel, was one blast, and was not answered by the Pavonia. The master of the Emmons made a report, in his own handwriting, to the steamboat inspectors, as required by law, on the day of the collision, in part as follows, viz.: ‘While we were on the swing, I blew one whistle to the...