Killien v. Hyde

• Citation: 63 F. 172
• Parties: KILLIEN v. HYDE et al.
• Decision Date: 25 August 1894
• Court: U.S. District Court — Southern District of New York

63 F. 172

KILLIEN v. HYDE et al.

United States District Court, S.D. New York.

August 25, 1894

E. N. &amp T. M. Taft, for libelant.

Alexander & Ash, for respondent Hyde.

Wm. J Kelly, for Long Island R. Co.

BROWN District Judge.

The above libel was filed by Mary Killien, as administratrix of Martin Killien, her husband, to recover damages under the statute of this state, for the death of the deceased, a fireman on the tugboat William H. Walker, on the afternoon of June 13, 1893, through an alleged negligent collision between the Walker, owned by the respondent Hyde, and the ferryboat Garden City, owned by the respondent, the Long Island Railroad Company.

The collision occurred on the East river, from 200 to 300 feet off the New York docks, about opposite the marble yard, just below the turn of Corlear's Hook. The weather was clear and pleasant, the tide, strong flood. Both boats were going down river; the Garden City, on one of,er regular trips from Hunter's Point to James' slip; the Walker, going down under one bell, near the docks, looking for a job. About 200 feet in front of them was the transfer tug No. 5, also going down. All three boats had come to a stop just above the Grand street ferry for two ferryboats of that line on the New York side, one coming out of that ferry, and another going in. At that time the Garden City was a little outside of the Walker and about 200 feet astern of her.

As soon as the inward-bound ferryboat at the Grand street ferry would permit them to pass, the three boats started ahead, the Garden City sheering at first somewhat outwards into the river. Soon afterwards she put her wheel to port, to turn her head down river. This brought her course more to starboard while rounding the hook, and gave the appearance of a sheer towards the Walker, as in a certain sense it was. The Walker at the same time on passing from the eddy, as I find, and striking the force of the true flood tide, which there sets strongly across towards the Brooklyn shore, was turned by the tide to port towards the Garden City, which, going faster, was overtaking and passing her on the Walker's port side. The Garden City was in fact passing so near, viz. from 40 to 100 feet, that after their approach to each other sideways was observed, before either could do anything effectual to prevent it, they came in collision, the port bow of the Walker striking the Garden City about 40 feet forward of her paddle box, and running under her guard, where she stuck fast. The blow itself was not violent, the Garden City having reversed, and the Walker having stopped her engines just before collision; but as the Walker swung round with the tide against and under the other's guard, she took and kept such a strong list to starboard, that observers thought she was going to roll over. Just at that time the engineer, who had been at supper in the kitchen, and heard the bell to stop a moment before collision, in trying to run around the house from port to starboard, so as to reach the engine room and attend to the engine himself, was unable to keep his footing, through the strong list to starboard as above stated, so that he could not help running off the deck into the water. A few moments afterwards, the deceased, who during the engineer's absence at supper, had been temporarily doing the engineer's duties at the engine, was also seen to run off the deck on the starboard side, a little forward of the engineer. The engineer after some ten or fifteen minutes was rescued; but the fireman was drowned. He was a fair swimmer, but seemed to have incurred some disability. He was 30 or 40 feet away from the engineer in the water, and they exchanged a few words; the last heard from the fireman being, that he could not hold out much longer. Soon after he sank.

1. There is no trustworthy evidence to indicate with certainty whether the fireman jumped off the boat voluntarily, or whether, like the engineer, in coming suddenly and quickly upon the sloping deck, he was unable to hold his footing, and was forced overboard. That he went off after the Walker had careened greatly, is clear from the fact that his position in the water was to the southward of the engineer, so that he must have gone over after the engineer. There seems to me small probability that he went overboard voluntarily; and if he did, it must have been done presumably from fright at the position and list of the Walker when he reached the open deck, and from apprehension of immediate capsizing; and even on that hypothesis, I could not hold him legally chargeable with negligence, or legal fault, for such an act done when apparently in extremis. The City of Norwalk, 55 F. 102, where the court says:

'The attempt of the deceased to jump to the float should not be treated as a legal fault, though a mistake and an error of judgment. He had doubtless seen one or both of his shipments jump just before. Coming suddenly from the engine room immediately upon the crash of the collision, when a considerable part of the side of the steamer had been carried away, and in the alarm attending such a catastrophe in the night time, there was no time nor opportunity for the exercise of deliberate judgment, and his act should, I think, be treated as errors in extremis are treated, viz. as a mistake made under the apprehension of immediate danger, for which those who wrongfully brought about the situation, and not

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