Senecal v. Thousand Island Steamboat Co.

—Plaintiff, upon the trial, produced extensive evidence tending to indicate that there was negligence in the management of the defendant’s boat, and that such negligence caused the loss of life of plaintiff’s intestate. On the other hand, defendant gave extensive evidence in denial of some of the testimony of the plaintiff, in explanation of some of the circumstances relied upon by the plaintiff, and also considerable testimony tending to contradict the evidence given by the plaintiff, and tending to support the theory of the defense,—that the accident was occasioned by the negligence of the officers in command of the Catherine. Appellant’s learned counsel has submitted an interesting and exhaustive brief upon the evidence, in his efforts to demonstrate that the verdict is wrong. After a perusal of the whole evidence,

- 2 Numerous exceptions were taken during the trial as to the admission and rejection of evidence, and our attention is called to only one exception to the charge by the appellant’s points. After an examination of the rulings in admitting the rejecting evidence and the charge, we are of the opinion that no error was presented which requires an interference with the verdict, unless it be in the rulings relating to the habits of Joseph Senecal, who was the owner and in charge of the steamer Catherine on the occasion of the accident. It seems by the evidence, he was a mom some seventy-two years of age. He was not called upon the trial by either party. Upon one theory put forward in the case, he was chargeable with the act which led to the collision. On the other hand, that theory was disputed, and it was alleged that he was free from negligence; and in referring to those theories the court, in the course of its charge, said: “ The evidence on the part of the defendant, as I suggested, tends strongly to the idea that from some cause or other,—-we cannot tell what, because Senecal is not here to answer,—-for some reason or other, having^by the language of the whistle, indicated all along, down to the very last, his desire to go straight along in his course and keep the St. Lawrence on his right, that suddently when these boats came near together here, for some reason or other, after his second signal, he changed his course, and attempted to, and did, cross right in front of the St.

This was objected to on the same grounds, and then followed this question: “Q. Have you heard that Joseph Senecal occasionally drank to an extent of becoming intoxicated ? ” This was objected to as immaterial and incompetent, and it was received, and an exception taken for the plaintiff. The witness answered, “I have heard it.” Thereupon, she is further questioned by the court, to wit: “Q. Before his death, had you heard of it, — before jour husband’s death ? A. I don’t know as he ever became intoxicated. Q. The question is, whether, before your husband was drowned, you had ever heard that the old gentlemen sometimes got intoxicated ? A. Not while running his boat. Q. No, but at any time ? He didn’t ask you about the boat. Had you heard that be did sometimes get intoxicated ? A. No, I don’t know as I ever did. Q. Do you mean you have heard of it since ? Because you answered, at first, that you had heard of it. Have you heard since? Is that what yon mean ? Or didn’t you ever hear of it? A. I don’t know as I ever heard of-it.’’

Thereupon, the counsel for the defendant took the witness, and put to her the following questions: “Q. Why did you answer

From the examination which we have quoted, it appears that the witness was permitted to state facts and knowledge as to the habits of Joseph Senecal, and that his condition on the night of the accident was not the subject of inquiry. It appears the witness had no knowledge of his condition on that night, and in her answers did not in any way refer to his then condition. We are inclined to think that the trial judge allowed too great scope in the inquiry as to Joseph’s habits, and that the facts which she stated in the first part of her examination, although modified somewhat by what she stated later, and the testimony given by her relating to his condition at times, -may have been very influential with the jury, inasmuch as the manner in which Joseph Sen ecol managed his boat on the occasion, by the course of the trial, is made a close and critical, as well as a very important, question. In the course of the opinion delivered in Warner v. N. Y. C. Railroad Co., 44 N. Y. 465 , it appears that an .important question arose in that case in respect to the acts of a flagman at the time when the accident occurred; and near the close of the opinion of Leonard, Com., he says in speaking of the flagman : “His previous habits of intemperance had nothing to do with the case. If the signal was omitted, the negligence was the same, whether the flagman was drunk or sober. His neglect on a former occasion, or his former intemperate habits, would not be sufficient to create negligence, or be any evidence of it, when this accident happened. The evidence objected to tended * * * to create a prejudice in the minds of the jury and invite punitive damages not directly, arising from the occurrence.”

That case was referred to approvingly in Cleghorn v. N. Y. C. & H. R. Railroad Co., 56 N.Y. 44 ; and at page 46, Church, C. J., says that the decision was right, and adds, “Previous intoxication would not tend to establish an omission to give a signal on the occasion of the accident.” The learned counsel for the respondent, upon the argument, attempted to break the force of the evidence thus erroneously received, by calling our attention to the charge of the trial judge, wherein he says there is not much question as to the contributory negligence, and that “the more serious question in the case is whether the defendant is guilty of negligence.” We think that is not a complete answer. In determining whether the defendant was guilty of negligence, a very important inquiry arose in respect to the conduct of the master of the Catherine, Joseph Senecal; and wo are inclined to believe

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Merwin, J., concurs.

—I favor a reversal for the reasons stated in the opinion of Hardin, P. J.