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Fitzsimmons v. McConnell

7 N.Y.S. 869 Court N.Y. Gen. Term Decision date 1889-12-10 English

Delivered by Barnard, P. J.

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p. 869
Fitzsimmons v. McConnell et al.
(Supreme Court, General Term, Second Department.
December 10, 1889.)

Headnote

1. Collision—Negligence.
In an action for personal injuries caused by a collision of defendants’ steam-tug with plaintiff's row-boat, evidence that plaintiff, on looking around, saw the tug and a canal-boat tied to a dock about half a mile ahead of him; that, after proceeding about a hundred feet further, on again looking around, he found himself between the tug and canal-boat, which were coming down the river at full speed; that plaintiff immediately gave alarm to the tug by loud shouting, which was joined in by other persons near by on the river; that the tug showed no response, but kept right on until plaintiff’s boat was struck: and that it was light at the time, so that those in charge of the tug could see half a mile down the river,—is sufficient to take the case to the jury on the question of defendants’ negligence.
2. Same—Contributory Negligence.
Where there is evidence that plaintiff, as soon as he saw the tug, commenced backing his boat; that he had time to back his boat half a dozen or a dozen strokes, and was going rapidly back at the time of the collision; and that the tug could stop in 300 feet by merely shutting off the power without reversing,—it is for the jury to pass on the question of plaintiff’s contributory negligence.
Appeal from circuit court, Kings county.
Action by Thomas A. Fitzsimmon against James McConnell and another for personal injuries and the loss of his shell row-boat, caused by a collision with defendants’ steam-tug. Plaintiff had a verdict and judgment thereon; and, from an order denying defendants’ motion for a new trial, they appeal.
Argued before Barnard, P. J., and Pratt, J.
Hyland & Zabrishie, for appellants. Tighe & Molloy, (T. J. Molloy, of counsel,) for respondent.

The evidence was sufficient to take the case to the jury as to the question of the negligence of the defendants. The plaintiff was in a shell-boat, going up the Harlem river, at about sunset, on the 10th of September, 1889. When the plaintiff arrived within half a mile of McComb’s dock, he looked over his shoulder, and saw a tug and canal-boat tied to the dock ahead of him. He proceeded on his course up the river about a hundred feet, when, on again looking around, he found himself between the tug and canal-boat, which were coming down the river at full speed. The plaintiff imme

p. 870
diately gave the alarm to the tug by loud shouting, which was joined in by other persons near by, on the river. The tug showed no response, but kept right on, until the plaintiff’s boat was struck,—cut in two,—and the plaintiff thrown into the river, and under the canal-boat and tug. It was light at the time, so that those in charge of the tug could see a half mile down the river. The first notice of the plaintiff’s danger was given by a deck hand on the canal-boat, and then it was too late to avoid the collision. There is but one inference possible from this testimony. The tug was not under proper lookout and control. It seems as if there was no one in the wheel-house, and that the pilot was, upon the deck engaged in other duties. It is not necessary to find this to be the fact, because if he was in the wheel-house he did not look ahead in anticipation of danger to others, and he did not heed the cries of warning so as to save the happening of the accident. The plaintiff made out a case for the jury, under Cooper v. Transportation Co., 75 N. Y. 116 .

The question of the plaintiff’s negligence (if any) which contributed to the accident was also one for the jury. The plaintiff saw the tug a hundred feet away, and at once commenced backing his boat. He had time to back for a half dozen to a dozen strokes, and was going rapidly back at the time of the collision. The tug could stop in 300 feet by merely shutting off the power, and without reversing. Under this evidence, it was for the jury to pass upon the contributory negligence of the plaintiff. Bills v. Railroad Co,, 84 N. Y. 5 . The judgment should therefore be affirmed, with costs.

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