Geoghegan v. Atlas S.S. Co

• Decision Date: 30 April 1895
• Parties: GEOGHEGAN v. ATLAS STEAMSHIP CO.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 369

40 N.E. 507

GEOGHEGAN

v.ATLAS STEAMSHIP CO.

Court of Appeals of New York.

April 30, 1895.

Appeal from common pleas of New York City and County, general term.

Action by Susan Geoghegan, as administratrix of John N. Geoghegan, deceased, against the Atlas Steamship Company. From a judgment of the court of common pleas of New York City and County (22 N. Y. Supp. 749), reversing a judgment for plaintiff, she appeals. Affirmed.

Roger M. Sherman, for appellant.

Everett P. Wheeler, for respondent.

BARTLETT, J.

This is an appeal from a judgment of the court of common pleas for the city and county of New York affirming a judgment dismissing the complaint at the close of the trial, and from an interlocutory order denying a motion for a commission. The plaintiff seeks to recover damages for defendant's negligence in causing the death of her husband, who fell from defendant's ship and was drowned. The complaint avers that defendant is a British corporation and its steamship Albano sailed under a British register; that the intestate was assistant steward of the Albano, and on the 11th day of September, 1884, while the steamship was on the high seas off the coast of the United States of Colombia, in the bay of Savanilla, or within the territory of that government, he met his death as stated.

We were asked to consider several questions on this appeal.

It was insisted that the jury should have determined whether the ship was on the high seas at the time of this accident, or within the territorial limits of the United States of Colombia. If the ship was on the high seas, then did the law of the flag place the rights of the parties under Lord Campbell's act (Acts Parl. 9 & 10 Vict. c. 93), which created a cause of action unknown to the common law against a person who, by his wrongful act, neglect, or default, caused the death of another? If the ship was within the territorial limits of the United States of Colombia, was the plaintiff entitled to the commission moved for to prove the law in force in that jurisdiction at the time of the accident? The view we take of this case renders it unnecessary to pass upon these questions. We do not think there was evidence sufficient to authorize the jury in finding the defendant guilty of negligence, and the deceased free from contributory negligence.

On the evening of the accident, which occurred about 8 o'clock and after dark, the iron doors of the forward gangway or port, on the starboard side of the ship, were left open, and the opening, instead of being guarded by the ordinary bulwark rail, was secured to a certain extent by a rope made fast on either side of the gangway, not stretched taut, but more or less slack, according to conflicting evidence. It was a dark night, the ship rolled at her anchor, and the waves were breaking against her side....