McCaldin v. Parke — 52 N.Y. St. Rep. 745

Majority

p. 745

James McCaldin, Resp't, v. William A. Parke et al., App'lts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

1. Negligence—Whare owner.

Where the owner of a wharf undertakes that a vessel 190 feet long and sixteen feet draft can unload at his dock, it is his duty to know that the undertaking is based on the fact represented, and the omission to know this is negligence.

2. Same—Evidence.

In an action for injuries to the vessel caused by running on sunken rocks while entering the wharf, evidence to show that the vessel was properly loaded is admissible.

8. Same.

The admission of the bills for repairs, as introductory to evidence of their payment, is proper.

Appeal from judgment in favor of plaintiff, entered upon verdict.

The plaintiff was the owner of the steamship Caroline Miller, 190 feet long, which, by charter-party, dated December 24, 1886, was chartered to the defendants, W. A. Parke & Company, for a period of eleven months from January, 1887, to carry lumber from Port Royal to New York.

She arrived in New York, on her third charter trip, on April 12, 1887, having been ordered by the defendants to discharge at their yard at Hunter’s Point. While approaching the wharf she struck upon a rock in close proximity thereto and received injuries, the repairing of which amounted to $6,320.24. The demurrage named in the charter-party was $100 a day, for twenty-two days, and it was proven that the vessel was detained twenty-two days while undergoing repairs, the whole damage amounting to $8,520.24.

The plaintiff collected from the underwriters the sum of $4,-496.76, leaving a balance of $4,023.48 for which, with interest from August 1, 1887, as agreed to, the jury found was due the plaintiff.

p. 746

The steamship was on her third trip when she met with the accident. She carried 454,909 feet of lumber, and on other trips carried larger quantities of lumber without accident.

It is proven that she was drawing about fifteen feet, six inches. The defendants contracted that they would have sixteen feet of water, and were informed what the draft of the steamer was to be.

Edward M. Shepard, for app’lts; W. W. Goodrich, for resp’t.

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

The principles of this case were passed upon in a former appeal, 50 St. Rep., 262 , and, therefore, there is nothing to be examined at present except the question whether there are any valid exceptions to the rulings of the court upon the trial.

No violation of the principles laid down in the opinion upon the former appeal are pointed out by the appellant, and we find none in the case, and we, therefore, refrain from discussing anything in the case except questions that were not raised in the former appeal.

The exception to the introduction of the bills paid by the plaintiff for repairs was not well taken, as they were merely introductory to evidence of payment, which was put in with the bills.

Neither was the exception to evidence that the vessel was properly loaded error.

In fact, all the exceptions to the admission of evidence are without merit, the evidence objected to being a necessary part of the plaintiff’s case, or proper to meet suggestions and inferences made by the defendants.

There are many exceptions to the charge of the judge, but we fail to find error prejudicial to the defendants in any one of them. The majority of them related to questions of fact, which were properly submitted to the jury under the former general term opinion. If that opinion properly states the law of this case, there is no error.

The amount of damage was fixed in the contract of employment.

All the questions discussed in the brief of the defendants relate to principles raised upon the former appeal, and require no discussion at this time, as we adopt and adhere to the former opinion, and affirm the present appeal upon it

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.