Cleveland v. New Jersey Steam-Boat Co.

• Decision Date: 13 January 1891
• Citation: 125 N.Y. 299,26 N.E. 327
• Parties: CLEVELAND v. NEW JERSEY STEAM-BOAT CO.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 299

26 N.E. 327

CLEVELAND

v.NEW JERSEY STEAM-BOAT CO.

Court of Appeals of New York.

Jan. 13, 1891.

Appeal from supreme court, general term, fourth department.

W. P. Prentice, for appellant.

Edwin H. Risley, for respondent.

PECKHAM, J.

This is the third time this case has been before us. On the former appeals the judgments for the plaintiff were reversed, on the ground that no negligence on the part of the defendant was proved. 68 N. Y. 306, 89 N. Y. 627. Subsequent to the last reversal a third trial was had at the circuit, and the plaintiff was nonsuited in obedience to what was supposed to have been the ruling of this court. That nonsuit was set aside on appeal to the general term of the supreme court, and a fourth trial was had, resulting in the recovery of a judgment by the plaintiff, which has been affirmed by the general term, and from that affirmance the defendant has appealed here.

The action was commenced on the 18th of December, 1873, and from that time it has been fought with great tenacity by both sides. The case is a strong illustration of the uncertainties inherent in the application of well-known and easily understood principles of law to facts as they appear on different trials. One side contends that the facts now before us are substantially the same as those which have been passed upon by this court in the former appeals, while the other contends that the principal question for us now to determine has never been decided adversely to him by this court, nor has it been presented on its merits as it now stands. We must take the case from the record now before us; and, if the plaintiff made out a case to go to the jury, we cannot interfere, although the defendant should claim that the evidence on the part of the plaintiff was so contradictory as to be unworthy of belief. In general, the credibility of witnesses is for the jury to pass upon, and this court has no function of that kind to perform. Some things have been adjudicated in the former appeals, and are not now open for discussion. It has been decided that the plaintiff was on the boat in the character of a passenger, and the defendant owed him the duty which a carrier of passengers owes to a person in its charge as such. It was conceded, then, and is not denied now, that the defendant had on its boat all the appliances necessary and proper to prevent such an accident. It was stated on the first appeal that it was plain the accident would not have happened but for an extraordinary and unprecedented concurrence of circumstances, viz.: The attempt of three rash persons to regain the land after the boat had started; then the heedless and unthinking rush and pressure of a crowd of passengers of ordinary sobriety and prudence; and then the wrongful opening of the gate by an unauthorized person. Had not these three things conjoined, the court could not say that the plaintiff would have been harmed.

Upon the trial now under review the plaintiff claimed that the defendant was negligent in not closing the gangway before the boat started, as it had ample means for doing so, but failed to use them. He also claimed that in starting the boat before the gangway was closed the servants of defendant disobeyed its standing orders, which he stated were to close and secure the gangway as soon as the gang-plank was hauled, and before the boat started. The plaintiff's counsel argues that there is a difference which is most material between the fastening of the gate itself before the boat started and putting in place the rail (which was put on top of the gate) and stanchions before such starting. It was held on the first appeal that defendant was not chargeable with negligence in not putting in place the rail and stanchions before the boat started. Judge FOLGER said that experience had not shown that danger was to be apprehended from that source, or that it was necessary to be argued against. 68 N. Y. 306, at 313. In order to see precisely what the case now before us is, it is best to take some extracts from the evidence on the part of the plaintiff as to what was the condition of things when the accident occurred. I will take the evidence of the plaintiff and his friend Schwab, who accompanied him, which is as favorable an account for him on the facts as can be found in the record. Having approached the boat, which was lying at its slip in New York city, a short time prior to its departure on the 8th of September, 1873, at 6 o'clock P. M., the plaintiff and his friend boarded it on its starboard side a little aft the wheel-house, the boat heading towards the west. They went from the dock down onto the boat by means of a gang-plank about the width of the gangway opening, and which plank was guarded with rails on each side. Continuing, the plaintiff says: ‘I went on the boat, and turned around, took my handkerchief out of my pocket, and waved it to my friends on the pier. Just at that time, I think, the boat started. I heard an order to cast off, or throw off, the line,-something like that; I did not understand about it,-and the boat started. Just at that instant somebody from back in the crowd-back in the boat-came running through the crowd hallooing,...