McLean v. Schuyler Steam Tow-Boat Line — 4 N.Y.S. 790

Majority

p. 790

McLean v. Schuyler Steam Tow-Boat Line.

(Supreme Court, General Term, Third Department.

March 16, 1889.)

Headnote

1. Shipping—Liability op Owner por Tort.

Where defendant proceeded to pull plaintiff’s schooner off the hawser connecting defendant’s steam-boat and a tow, after being told that the hawser was between the schooner’s stern-post and rudder, and without removing the hawser from that position, and the rudder and planks were torn off, and the schooner was sunk, defendant was liable, though the schooner came on the hawser through plaintiff’s negligence, and though the condition of the schooner was desperate; such desperate condition consisting in plaintiff’s inability to extricate the schooner without proper precaution and assistance on defendant’s part.

p. 791

2. Same—Opinion Evidence.

A question whether anything could have been done on defendant’s part better than was done calls for an opinion on a question on which expert knowledge is unnecessary, and is properly excluded.

Appeal from judgment on report of referee.

Fatherty owned and was captain of a schooner on the Hudson river. On the night of the 8th of June, 1886, when there was no wind, she was floating down the river on an ebb-tide, laden with a cargo of brick. She had the usual red and green lights upon her port and starboard sides. These were not visible from her rear. She was about 150 feet from the west shore. The moon was about two hours and three-quarters high, and the schooner was in the shadow' of the hills on the w'est bank of the river. The defendant’s steamboat, the Connecticut, was at the same time towing a fleet of 60 canal-boats down the river. The steam-boat was 500 feet in advance of the fleet, and 4 hawsers connected the steam-boat and fleet. Two steam-tugs of defendant accompanied the steam-boat. Fatherty saw the steam-boat when she was two miles away. It was his duty then to show a lighted torch upon the point or quarter of his schooner towards which the steam-boat was approaching. Rev. St. U. S. § 4234. This he did not do. The result was, the schooner was not seen from the Connecticut until she came abreast of the schooner. The river makes a sharp turn at West Point, and it was obvious that the schooner would be caught in the loop to be formed by the steam-boat and fleet in rounding the turn. The schooner was so caught, and was throw'n upon one of the haw'sers joining the fleet to the steam-boat. The referee finds that the schooner became thus entangled in consequence of the negligence of her owner and master, the plaintiff’s intestate. While in this position she was carried along with the tow for about two miles. The captain of the steam-boat then sent one of his tugs, with orders to get the schooner off the hawser as soon as possible. In doing this the rudder of the schooner was torn off, also some of her planks, and she soon sank. Judgment for plaintiff. Defendant appeals. Fatherty having since died, Alexander McLean, administrator, etc., was substituted.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

Worthington Frothingham, for appellant. F. Countryman, for respondent.

The plaintiff’s negligence caused his schooner to be thrown upon the deiendant’s hawser, with which defendant, by means of the steamboat Connecticut, was towing a fleet of canal-boats down the river. The schooner was between the canal-boats and the defendant’s steam-boat. It was plaintiff’s duty to be extraordinarily diligent in getting off the hawser. It was defendant’s duty to use ordinary care to do no unnecessary injury to the schooner in assisting in getting her off the hawser. Mark v. Bridge Co., 103 N. Y. 28 , 8 N. E. Rep. 243 . Upon the facts found by the referee, the defendant did not use ordinary care to avoid doing unnecessary injury to the schooner, but proceeded to pull her off, after being told that the hawser was between the stern-post and the rudder, and when it was obvious that without removing the hawser from that position the stern-post would be torn off, and the schooner otherwise in j ured. The finding of the referee is within the evidence, and we see no reason to dissent from it.

The negligence of the plaintiff, by which his schooner fell into this place of danger, and became a nuisance to the defendant, was not the proximate cause of the injury to the schooner. That was caused by the defendant’s reckless disregard of the consequences of proceeding to pull the schooner off the hawser without taking the precautions known to be necessary in order to avoid doing her unnecessary injury. True, the referee finds that the schooner’s condition was “desperate” when lying on the hawser between the fleet of canal-boats

p. 792

and the steam-boat propelling them. But that desperate condition consisted in the plaintiff’s inability to extricate his schooner without the proper precaution and assistance on the part of the men in charge of the steam-boat. The proper things to do were suggested by the plaintiff. They would involve a small delay on the part of the defendant. This delay was refused, and the defendant pulled off the schooner in reckless disregard of the consequences reasonably to be apprehended, and which witii ordinary care might have been avoided.

The objection to the question put by the defendant to the captain of the steam-boat, whether in his opinion anything could have been done by him or his steam-boat better than was done, was properly sustained. The negligence charged against the defendant consisted of the simple act of pulling the schooner off the hawser under such conditions as must tear the rudder from the schooner. Ho expert knowledge was needed to understand so simple a situation and its consequences, and the substitution of an opinion for the facts would manifestly be improper. The judgment should be affirmed, with costs. Ail concur.

Cases cited

Mark v. Hudson River Bridge Co. 103 N. Y. 28 N.Y. 1886-10-05 p. 791