Hunt v. Hoboken Land & Improvement Co. — 1 Hilt. 161

Majority

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Ely Hunt and William B. Nelson v. Hoboken Land and Improvement Co.

Headnote

The court will not consider an objection presented on appeal, which, if taken at the trial, might have been obviated by the respondent. This rule illustrated and applied.

The court will not, on a question of fact, disturb the finding of a jury, unless clearly against the weight of evidence.

. A judgment of this court, on appeal, reversing a judgment of the Marine, or a district court, for the plaintiff, not predicated on the merits of the controversy, is no bar to another action for the same cause. Its effect is merely to remit the parties to their original rights and obligations.

The ..statute (2 R. S. p. 92, § 1), regulating the course of steamboats which “meet each other ” on any waters within the jurisdiction of this state, does not apply to steamboats whose course is at right angles to each other. In such a ease, when a collision occurs, the question of liability therefor depends upon the question of negligence, and is to be determined by tbe general considerations which govern such questions, not by the statute rog'ulation.^[1]

Appeal by defendants from a judgment entered on a verdict of a jury. This was an action to recover damages for an injury occasioned to tbe Manhattan, tbe plaintiffs’ steamboat, by a collision with tbe James Rumsey, tbe defendants’ ferryboat. Tbe Manhattan is a Hudson river steamboat. On the 13tb of June, 1853, she left ber pier at tbe foot of Robinson street, and proceeded up tbe North River. About Canal street it met tbe.

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James Rumsey, the defendants’ ferryboat, crossing from Hobo-ken to New York city. Their courses, if continued, would cross each other at right angles. As the boats were then proceeding, a collision was inevitable, and to avoid this the Manhattan turned her bows to the west, so as to pass under the stern of the James Rumsey. The James Rumsey also altered her course at about the samé time; but, according to the testimony of the Manhattan’s pilot, a little after, turning her bows to the right, down the river, so as to pass the Manhattan on her left side. The result was, that the James Rumsey struck the Manhattan jpn her larboard bow, injuring her so seriously as to make it necessary for her to abandon her trip, and return to New York It was for damages for this collision that this action was brought.

This action was originally brought in the Marine Court, and ■a judgment rendered for the plaintiffs; but, on appeal to this ,court, that judgment was reversed for error in the charge of the judge, A new action was then commenced in this court, to which the defendants plead, as one of their defences, the former j udgment in bar.

Upon tbe .trial of tbe cause, tbe plaintiffs’ counsel asked of Hazard Morey, the pilot of the Manhattan, the question:

“ What was.a proper course for a Hoboken ferryboat to take in crossing the river from Hoboken to New York?”

The question was objected to, on tbe ground that there was no evidence to show that the witness was acquainted with the course of the ferryboats. The witness then stated that he was acquainted with the .usual .course adopted by tbe ferryboats; whereupon the objection was overruled, and the evidence admitted. The plaintiffs’. counsel also asked the folio wing question of one George Lester, and a similar question, in a little different form, of Hazard Morey,:

“ What is the custom or course of navigation among pilots ol steamboats, when their vessels are meeting at right angles?”

This question was objected to by the defendants’ counsel, on tbe ground that it was a question of law fully provided for by

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statute.^[2] Tbe objection was overruled, and an exception taken. Tbe defendants, to sustain tbeir defence, offered an exemplified copy-record of a judgment-roll in tbe Common Pleas, reversing tbe prior judgment for tbe plaintiffs in tbe Marine Court, as a bar to this action. It was excluded by tbe court, and an exception taken.

There was, also, some contradictory evidence upon tbe question as to wbicb party was guilty of negligence. This question was left to tbe jury under tbe direction of tbe presiding judge, to whose charge no exception was taken, and a verdict was rendered for the plaintiffs for $550. Erom tbe judgment entered on this verdict tbe defendants appealed.

Cambridge Livingston, for tbe appellants.

Dennis McMahon, for the respondents.

Tbe first point presented by tbe appellants is not sustained by tbe objection taken on tbe trial. There was no objection to tbe testimony of tbe witness on tbe ground that be was not an expert, or that there was no evidence of bis capacity as such. Tbe objection was, that there was no evidence to show that be was acquainted with tbe course of tbe ferryboats,- and thereupon, to meet it, tbe witness was interrogated as to that course, and answered that be was acquainted with it. The objection was then overruled by the presiding judge. That was, perhaps, unnecessary, inasmuch as tbe witness by bis testimony removed tbe objection. He was acquainted with tbe course of tbe ferryboats, and thus possessed tbe only qualification required by the counsel for tbe defendants. We have held, in accordance

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with the rule which prevails in all the courts, that we will not consider an objection presented on appeal, which, if taken at the trial, might have been obviated by the respondent, and that rule must be applied to the objection which is the subject of the first point.

The third, fourth and fifth points must be decided against the appellants. The verdict was not clearly against the weight of evidence, and cannot be disturbed for that reason. The questions submitted to the jury were questions of fact, peculiarly and exclusively within their province, to be determined by them upon the legal rules suggested on the trial, which should govern their deliberations. There are few cases presented in courts of jui^lce in which a contrariety of testimony is not given, and this case is not within the exception. For these reasons, unless the presiding judge erred in declaring the law, the finding is conclusive.

The judgment of the Common Pleas, rendered on the appeal from the Marine Court, was not conclusive. It was not predicated on the merits of the controversy. The appeal was not upon the absence of any cause of action, but for errors of law committed by the court below, which were corrected, the judgment reversed and the parties remitted to their original rights and obligations. This is expressly adjudicated in this court (Ellert v. Kelley, 10 How. 392 ), and renders the consideration of the question, whether section 830 applies to appeals from the Marine and justices’ courts, unnecessary. If the judgment of this court, on that appeal, had been otherwise, the proposition of the defendants’ counsel would be incontrovertible, and that judgment a bar to this action.

No exception to the charge of the presiding judge was taken, but the appellants insist, in their second point, that he erred in permitting testimony to be given as to “the-custom or course of navigation among pilots when their vessels are meeting at right angles,” inasmuch as the statute and the common law defined what their course should be, and insists also that it was a question of law. We have no hesitation in adopting the view of the

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statute expressed by Judge Woodruff, in delivering tbe opinion on tbe appeal from tbe Marine Court, and in bis charge to tbe jury in tbis case. When vessels meet at right angles, and a collision occurs, tbe question presented is one of negligence, and depends upon tbe general considerations which govern such questions, and not upon tbe statute regulation upon which tbe defendants rely. If steamboats meet on lines parallel to each other, whether proceeding up and down a river, or crossing it diagonally, tbe statute applies equally to them; and it becomes incumbent upon them each to go towards that side of tbe river which is to tbe starboard or right of such boat, as required by tbe statute. The observance of that statute under such circumstances, where it is not impossible, would, it seems, obvióte a collision beyond all question; but, when vessels meet at right angles, the observance of such a rule might often result in the v very catastrophe the statute was designed to prevent. It cannot be denied, with any propriety, that if a steamboat be proceeding down a river, and is met at right angles by one crossing it, the effect of each going to starboard might, in many instances, throw the vessels together by the sheer which invariably follows from such management. The consideration of that fact alone, without reference to the nautical rule on the subject, would seem to reject the theory, that in such instances the statute must apply. Yessels are to meet each other head to head or bow to bow to induce a compliance with the statute, and the extension of its provisions to any other situation of vessels, in the absence of proof showing its utility and safety, would be a dangerous exercise of judicial power. All these elements went to the jury in unexceptionable form. They were instructed not only on the legal propositions involved, which were correctly stated, but upon the questions of fact upon which they were to pass. The evidence objected to was in perfect harmony with the rule adopted by the court, and its reception unavoidable. The objection was therefore not well taken, and there being nothing in the bill of exceptions which will justify us in disturbing the verdict the judgment must be affirmed.