Dentz v. Pa. R. Co.

• Decision Date: 15 June 1908
• Citation: 75 N.J.L. 893,70 A. 164
• Parties: DENTZ et al. v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

70 A. 164

75 N.J.L. 893

DENTZ et al.

v. PENNSYLVANIA R. CO.

Court of Errors and Appeals of New Jersey.

June 15, 1908.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by George H. Dentz and others against the Pennsylvania Railroad Company. Judgment for plaintiffs, and defendant brings error. Reversed.

James B. Vredenburgh, for plaintiff in error.

Davis & Hastings, for defendants in error.

BERGEN, J. The plaintiffs' case showed that defendant's tug was towing a lighter, loaded with 350 tons of iron, from Brooklyn to the New Jersey shore; that while in the East river, and just off the slip between Piers 4 and 5, a swell, caused by a passing boat, caused the lighter to leak, and it began to fill rapidly; that the captain of the tug, in order to save his cargo, endeavored to beach the lighter by entering the slip between the piers mentioned, in which was moored the plaintiffs' tug, with two lighters lying between it and Pier 3; that there were canal boats in the slip along Pier 4, nearly opposite plaintiffs' tug; that the lighter had listed considerably as it approached and entered the slip, though the situation was not then considered dangerous; that when opposite plaintiffs' tug the stern of the lighter, owing to the parting of a hawser, caused by the great strain it was under, swung off slightly from the tug, whereby the whole strain was thrown on the hawser at the bow of the tug, causing a greater listing of the lighter towards the tug, creating a situation in which there was imminent danger that the load of Iron upon the lighter would slide over on the tug, and sink both it and the lighter; that at this juncture the captain of the defendant's tug ordered the hawser cut, and when this was done, the tug righted, and the load of iron on the lighter slid into the water, the result being that the side of the lighter towards plaintiffs' tug was raised out of the water, and the lighter cast on it, causing it to sink.

On this state of facts the trial court charged the jury as follows: "Ordinarily speaking, when one vessel is tied up to a dock, and a tug with a tow collides with the vessel which is tied up to a dock, and a tug with a tow collides with the vessel still tied up, the presumption is that there was some negligence on the part of those who were managing the tugboat. And that presumption would seem to exist in this case, in the first instance, and I think you are entitled to start with that presumption." To this an exception was taken, and error assigned. We think that under the circumstances shown in this case by the plaintiffs, an instruction that the jury should begin their consideration of the facts with the presumption that the defendant was negligent, from the mere fact that the lighter collided with plaintiffs' tug, was an error which requires a reversal of this judgment. When nothing appears, except that a boat, coming into a slip under ordinary conditions, collides with another moored...