Feeney v. Minnisceongo Towing Co. — 50 N.Y. St. Rep. 252

Majority

p. 252

Owen Feeney, App'lt, v. The Minnisceongo Towing Co., Resp't.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Negligence—Mismanagement of tug.

Plaintiff was in charge of a barge which was towed by defendant’s tug. The captain of the tug was drunk; and others on hoard, who were laborers, undertook to manage her, but by turning the wheel the wrong way ran it aground, when the barge was driven against it by a heavy sea, and plaintiff was injured. Held, sufficient proof of negligence to require submission of that question to the jury.

(Dykman, J., dissents.)

Appeal from judgment dismissing the complaint.

Action to recover damages for injuries sustained through the negligence of defendant, its employees or servants in the management of a steam tug.

Arthur S. Tompkins, for app’lt;

Wm. McOauley, Jr., for resp’t.

The plaintiff was in charge of a barge on the Hudson river at Grassy Point. The defendant owns- a tug boat. The tug company from here undertook to tow the plaintiff’s barge up the Minnisceongo -creek. The plaintiff avers that the tug boat ran aground by unskilful management out of the channel, and the plaintiff’s barge was thrown against it, whereby the plaintiff was injured. The proof shows that the barge was about twenty feet behind the tug, and that the captain of the tug had charge of the tow. He was not in his place, and was drunk. There were two other men on the tug, and they undertook the direction. They were brick yard laborers. The tug ran aground. There was a high wind. The wind, notwithstanding the utmost efforts of the people on the barge, was driven against the tug. A sea drove the barge so strongly against the tug that the plaintiff was injured quite seriously. The men on the tug turned the wheel the wrong way, which occasioned the tug to ground. There was sufficient proof of negligence to go to the jury. There was no proof of contributory negligence which a trial court could

p. 253

say, as matter of law, was sufficient to take that question from the jury.

The judgment should be reversed, and a new trial granted, costs to abide event

Pratt, J., concurs; Dykman, J., dissents.