Wagner v. Buffalo & Rochester Transit Co.

The plaintiff, in his complaint, seeks to recover damages of the defendant by reason of the negligence of the latter’s agents and employés who were in charge of the steamer Kirk; the allegation being that the defendant’s boat, on meeting the steel fleet, negligently attempted to pass to the left, whereas it should have turned to the right, in accordance with the provision of section 169 of the canal law (chapter 338, Laws 1894), which requires that:

“The master of a float (which includes every boat, vessel, raft, or floating thing navigating on the canals), meeting another float, shall turn to the right, so as to be wholly on the right side of the center of the canal.”

It appears, however, that this requirement was subsequently quite materially modified by the general navigation law, which provides, among other things, that:

“(1) When two steamboats are meeting end on,. or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other. * * * (9) When two steamboats are approaching each other, and if the course of such steamboats is so far on the starboard side of each other as not to be considered by the pilots as meeting end on, or nearly so, or if the steamboats are approaching each other in such manner that passing to the right as in rule one is deemed unsafe by the pilot of either steamboat, the pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other ■steamboat shall answer promptly by two blasts of his steam whistle, and they shall pass to the left (on the starboard) side of each other.” Laws 1897, c. 592, § 11, subds. 1, 9.

It is further provided by subdivision 14 of the same section, that:

• “In construing these provisions, due regard must be had to all the dangers of navigation, and to any special circumstances which may exist, rendering .a departure therefrom necessary in order to avoid immediate danger.”

“If the pilot of the Alpha gave two short and distinct blasts on his steam whistle first, it was the duty of the pilot on the Kirk to answer promptly by two blasts of his steam whistle; and then the two steamers were required to pass to the left side of each other, and the plaintiff was not entitled to recover.”

To this request the court replied:

“That is so, unless, while passing to the left, the defendant’s employes were negligent, and could have prevented the accident by the exercise of reasonable care.”

No exception was taken by the plaintiff’s counsel to this instruction, but subsequently he asked the court to charge:

“In case the jury reach the conclusion that the Alpha signaled to pass to the left first, then the defendant, for the protection of the plaintiff’s boat, was bound to exercise proper care and diligence in the management of its own boat, whether such care required an observance of or a departure from the general rules of navigation, and the defendant was not bound at all hazards to comply with signals from the Alpha to pass to the left; and If, under all the circumstances, reasonable care and prudence for the safety of plaintiff’s boat dictated that it was safest and best to disregard the signal of the Alpha, it then became its duty to notify the officers on board the approaching steamer that the Kirk, with the plaintiff’s boat in tow, could not without risk attempt to pass to the left, but that it would retain its position along the right side of the canal, and pass to the right of the approaching boats.”

In response to this request the court stated that it declined to vary its charge, whereupon the plaintiff’s counsel requested the. court to charge:

“The law does not require a boat that has been signaled to pass either to the right or to the left of an approaching boat to obey such signal, when to do so is to endanger the boat so signaled or other boats which it may have in tow.”

And to this request the learned trial court made substantially the same reply. To these two refusals the plaintiff’s counsel duly excepted, and the exceptions thus taken raise the principal question relied upon for a reversal of the judgment and order appealed from.

“If the pilot of the Alpha, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided and gave the signals, it was the duty of the pilot of the ICirk to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond by passing to the left. If you find that there was not such imminent danger of collision as justified the pilot of the Kirk in not responding to the signal, it was his duty to pass to the left. It will he for you to say whether, under those circumstances, he could have prevented collision of the canal boat and the steel fleet by the use of reasonable care."

We think this statement of the law governing a case of this character was not only correct, but that it was virtually what the plaintiff’s counsel sought to have covered by his two requests above referred to; and, if so, then the learned trial court was not bound, upon the insistence of counsel, to again charge the same rule of law, although the request so to do was clothed in slightly different language. Rexter v. Starin, 73 N. Y. 601 ; Quinn v. O’Keeffe, 9 App. Div. 68 , 41 N. Y. Supp. 116 . Where the court has charged sufficiently as to the duty of a person placed in a particular situation, counsel is not entitled to have further requests charged, the substance of which has been covered by the charge already made. This rule is one to which the courts have steadily adhered, and it is one which, we think, is especially applicable to this case, inasmuch as no exception was taken to either the main body of the charge or to such supplementary instructions as" were given at the request of the defendant’s counsel. We conclude, therefore, that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs. All concur, except LAUG-HLIN, J., who dissents in a separate opinion.

This action was brought to recover damages caused to plaintiff’s canal boat by a collision alleged to have occurred through defendant’s negligence. Plaintiff was the owner of the canal boat John Anson, which, on the morning of the 25th of October, 1899, was being towed from Rochester to Buffalo along the Erie Canal by defendant’s steamboat, the W. B. Kirk. Plaintiff’s boat had no cargo, and, as the wind was blowing hard from the south, it was very difficult for the steersman to keep the boat clear of the north bank of the canal. The evidence would have justified a finding that this was known to those on board the Kirk. At about 5 o’clock in the morning, and when in the neighborhood of a mile west of Brockport, a fleet of boats was discovered approaching from the west. These boats were being conveyed by the steamer Alpha, and are referred to in the evidence as the “steel fleet.” When these approaching boats were from 500 to 700 feet apart, two whistles were given by one of the towing vessels, which were responded to by the

Section 169 of the canal law (chapter 338, Laws 1894) provides that:

“The master of a float meeting another float, shall turn to the right, so as to be wholly on the right side of the center of the canal.”

Section 160 defines the term “float” as including “every boat, vessel, raft, or floating thing, navigated on the canals, or moved thereupon under the direction of some person having charge thereof,” and defines “master” as including “every person having for the time the charge, control, or direction of any such float.”

Subdivision 1 of section 11 of the navigation law (chapter 592, Laws 1897) provides that:

“When two steamboats are meeting end on, or nearly end on, so as to Involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other.”

Subdivision 5 of the same section provides as follows:

“Every vessel under steam, when approaching another steamboat or small boat or vessel of any kind, so as to involve the risk of collision, shall slacken her speed, or, if necessary, shall stop and reverse her engine, and every vessel under steam shall when in a fog go at a moderate speed.”

Subdivision 9 provides that:

“When two steamboats are approaching each other, and if the course of such steamboats is so far on the starboard side of each as not to be considered by the pilots as meeting end on, or nearly so, or if the steamboats are approaching each other in such manner as passing to the right as in rule one is deemed unsafe by the pilot of either steamboat, the pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other steamboat shall answer promptly by two blasts of his steam whistle, and they shall pass to the left (or starboard) side of each other.”

Subdivision 14 provides that:

“In construing these provisions, due regard must be had to all the dangers of navigation, and to any special circumstances which may exist, rendering a departure therefrom necessary in order to avoid immediate danger.”

If the first signal to pass to the left or starboard side was given by the Kirk, it was and is plaintiff’s contention that defendant’s negligence would then be clearly established. If, on the other hand, the first signal to so pass was given by the Alpha, defendant’s liability would depend entirely upon other facts. Inasmuch as a general verdict only was rendered, the record fails to show how the jury decided the question of fact as to which steamer first gave the signals. It is thus evident that, if the jury were not properly instructed upon the law applicable to the facts, whichever way they might find them, a

The court properly charged the jury that if the Kirk first gave the signals, and her tow was crowded to the north bank of the canal and held there by the wind, and the circumstances were such that it was unsafe and unreasonable to attempt to pass to the left, they might find the defendant guilty of negligence. The court then instructed the jury as follows:

“On the other hand, if the pilot of the Alpha, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided, and gave the signals, it was the duty of the pilot of the Kirk to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond and pass to the left. If you find that there was not such imminent danger of collision as justified the pilot of the Kirk in not responding to the signal, it was his duty to pass to the left. It will be for you to say whether, under those circumstances, he could have prevented collision of the canal boat and the steel fleet by the use of reasonable care. The only thing which the captain of the Kirk could do was to cast off the line and leave the canal boat at the north side of the canal, where it probably would have been safe.' You will determine which of the pilots gave the signal, and if it was first given by the pilot of the Kirk, and under such circumstances as constituted negligence on the part of the employés of the defendant, and if that occasioned the accident, your verdict may be for the plaintiff. If the signal was first given by the pilot of the Alpha, and was responded to by the pilot of the Kirk, as he was bound to do, you will determine whether there was anything which the employés of the Kirk could have done to avoid the injury which they did not do.”

At the close of the main charge the counsel for the defendant requested the court to charge that:

“If the pilot of the Alpha gave two short and distinct blasts on his steam whistle first, it was the duty of the pilot of the Kirk to answer promptly by two blasts of his steam whistle, and that then the two steamers were required to pass to the left side of each other, and the plaintiff was not entitled to recover.”

To this the court responded as follows:

“That is so, unless, while passing to the left, the defendant’s employés were negligent, and could have prevented the accident by the exercise of reasonable care.”

Plaintiff’s counsel did not except to any of the foregoing provisions of the charge; but, immediately after the charge given at the request of defendant’s counsel, he requested the court to instruct the jury as follows:,

"In case the jury reach the conclusion that the Alpha signaled to pass to the left first, then the defendant, for the protection of plaintiff’s boat, was bound to exercise proper care and diligence in the management of its own boat, whether such care required an observance of or a departure from the general rules of navigation, and the defendant was not bound at all hazards to comply with signals from the Alpha to pass to the left; and if, under all the circumstances, reasonable care and prudence for the safety of plaintiff’s boat dictated that it was safest and best to disregard the signal of the Alpha, it then became its duty to notify the officers on board the approaching steamer that the Kirk, with the plaintiff’s boat in tow, could not without risk attempt to pass to the left, but that it would retain its position along the right side of the canal, and pass to the right of the approaching boats.”

The court declined to vary the charge in that respect, to which ruling plaintiff’s counsel duly excepted. Plaintiff’s counsel thereupon asked the court to charge:

“The law does not require a boat that has been signaled to pass either to the right or to the left of an approaching boat to obey such signal, when to do so is to endanger the boat so signaled or other boats which it may have in tow.”

The court declined to vary the charge, and plaintiff’s counsel duly excepted.,

This is not a case of a multitude of somewhat similar or misleading requests framed for the purpose of entrapping the court into committing some error. Defendant’s counsel presented but two requests, and plaintiff’s counsel presented only two. While the court in the body of the charge fairly stated the correct rule of law upon this question,—that, if the signals were first given by the Alpha, it was the duty of the pilot of the Kirk to accede thereto, unless by so doing there was immediate danger of collision,—yet the last sentence was misleading, in that it stated unequivocally that in such case the pilot of the Kirk was bound to respond, and eliminated the circumstance of immediate danger, which would relieve him from such obligation. Probably this would not constitute reversible error, even if an exception had been taken thereto; but the purpose of defendant’s counsel’s request to charge, which was granted by the court, was to modify the first part of the main charge in this regard, and to make it clear to the jury that the defendant’s pilot had no discretion, and nothing to say as to the side upon which the boats should pass, provided the signals were first given by the pilot of the Alpha. The provision of the canal law hereinbefore quoted, and rule 1 of the navigation law, also quoted, prescribed the general rule for vessels navigating the canal, and required that they should pass to the right or port side. The exception is provided in rule 9 for cases where the pilot of either of the approaching steamers deems it unsafe to pass to the right, and in such case such pilot shall signify his determination in that regard by two short and distinct blasts of the whistle. Under ordinary circumstances it then becomes the duty of the pilot of the other steamboat to answer by two blasts of the whistle, and the boats are required to pass to the left side of each other. It is, however, manifest that rules 5 and 14, also quoted, were designed to authorize a departure even from rule 9 where the dangers of navigátion or any special circumstances rendered a departure therefrom necessary in order to avoid a collision. The pilot of the Kirk, in such emergency, instead of responding with two whistles, could have given a danger or other signal, and both fleets could have slowed down; the Alpha stopping, if necessary, if she could not safely pass to the right, until the Kirk could get her tow to the south side of the canal, out of danger.,

The requests to charge made by plaintiff’s counsel were manifestly for the purpose of having this rule of. law properly and clearly presented to the jury. The attention of the court was sufficiently called to the error in the charge already made, for the request to charge was diametrically opposed to the charge as made by the court immediately before. Defendant’s sole remedy was not to except to the charge as made. The original charge having been modified by the granting of defendant’s request to charge, the particular way in which the charge so modified was desired to be qualified by plaintiff

I think the court’s refusal to charge as requested clearly constitutes reversible error. The judgment appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event.