Roney v. New York, S. & W R. Co.

• Decision Date: 03 September 1904
• Parties: RONEY v. NEW YORK, S. & W.R. CO. et al.
• Court: U.S. District Court — District of New Jersey

132 F. 321

RONEY v. NEW YORK, S. & W.R. CO. et al.

United States District Court, D. New Jersey.

September 3, 1904

Hyland & Zabriskie, for libelant.

Collins & Corbin, for respondents.

LANNING District Judge.

On January 7, 1903, the schooner Harry Landell arrived at the coal docks at Edgewater, N.J., on the western shore of the Hudson River, for a cargo of coal to be delivered at Groton Conn. She was tied up at the docks on the lower side of pier No. 2, waiting for her load, until Saturday, January 17th. About 5 o'clock on the afternoon of that day she was taken across the slip, about 100 feet in width, from the lower side of pier No. 2 to the outermost chute but one on the upper side of pier No. 1. The loading of the schooner was immediately commenced, and it was finished about 9 o'clock the next (Sunday) morning. The docks are in possession and control of the New York, Susquehanna & Western Railroad Company. About 10 o'clock Sunday morning the railroad company employed the steam tug Lyndhurst to tow the loaded schooner away from the docks and into the Hudson river. She was taken out some 200 or 300 yards from the New Jersey shore and anchored there. The weather was very cold and there was much ice in the river, although at the time of the removing of the schooner the most of the ice, by reason of a northwest wind then prevailing, had been driven toward the New York shore, and there were no great accumulations of ice in the part of the river where the schooner was anchored. She lay at anchor during that day, but about 8 o'clock in the evening, the wind having shifted to the north and the river having filled with ice around her, she began to leak and to drag her anchor. During the night she drifted down the river some two miles, until her anchor caught fast in one of the submarine pipes of the Standard Oil Company. On Monday morning two tugs of that company towed her up the river to the flats above the coal docks, where, on account of her sinking condition, she was beached. Her cargo was then removed, the leaks stopped, the water pumped out of her, and she was taken to a dry dock for repairs. The injury to her was caused by the pounding of the ice. This action is brought against both the railroad company and the Lyndhurst, for the recovery of damages thus sustained by the libelant.

The libelant charges that the respondents were particularly at fault in taking the schooner into the river while there was solid and floating ice there, or danger to be apprehended from the same, and against the objections and protests of the schooner's mate, who was then in charge of her, and in making no efforts to take her to a place of safety after she had been left in the river. A recovery by the libelant must depend upon whether, by a fair preponderance of evidence, he has shown negligence on the part of the respondents, or either of them, which was the proximate cause of the damage. He claims to have shown such negligence. The respondent, the railroad company, which assumes the burden of the defense, insists, first, that no negligence, either on its part or on the part of the Lyndhurst, has been shown, and, second, that, if such negligence has been proven, still the libelant himself was also negligent, and that the damages sustained by him should be apportioned between the libelant and the respondents.

It is clear, I think, that the schooner received little, if any injury before the latter part of Sunday. The evidence satisfies me, however, that the vessel could not have been left there without apprehension of grave danger. The fact is that in the afternoon the wind shifted from the northwest to the north, the ice began to run down the river and to spread across it from the New York shore, and to pound the vessel and by 8 o'clock in the evening she was leaking, dragging her anchor, and drifting helplessly down the stream. The change of the wind and the filling of the river with ice should have been apprehended. Plainly, it should not have been deemed prudent to leave the schooner where she was anchored, unless, indeed, the respondents had reason to believe that she would be speedily removed to a place of safety. They had no such reason. The schooner required a crew of five men to sail her. There were but two, the mate and the cook, on board when she was removed. The master, who is also the owner of the vessel and the libelant in this case, resided in New York City. He had visited the docks every day while his schooner lay there to learn when she would be loaded. On Saturday afternoon, ...