MacMahon v. Brooklyn & New York Ferry Co.

-—On the evening of July 21, 1895, the plaintiff’s intestate, with John Williamson and Charles L. McCann, was in a steam launch, with which the defendant’s ferryboat collided, in the East river, and his death by drowning resulted from the collision. The plaintiff charges- that the accident-was attributable solely to the negligence of the defendant. Much, and some conflicting, evidence was introduced as to the circumstances and attending conditions under which it occurred, hearing upon the issues presented for trial. Those three gentlemen embarked in the launch at the Wallabout Basin, and proceeded up the Brooklyn side of East river to a slip at the-foot of South Second street, passing several ferry slips, including that of the Twenty-Third Street Ferry. After remaining there for a time they proceeded to return. There was a strong flood tide, which retarded the progress of the launch, so that it proceeded very slowly. It was a small boat, evidently having weak motive power. When it came near to the Twenty-Third Street Ferry slip (its then particular locality does not very clearly appear), Williamson testified that he saw the ferryboat distant 450 feet, coming down the river, headed towards the Brooklyn shore, and at some point below that slip, until after it came within 200 feet of the launch ; that when at that distance the launch whistle was blown, and blown repeatedly. The course of the ferryboat very shortly

An important fact, bearing upon the question of the alleged negligence of the defendant, Avas Avh.eth.er or not it Avas daylight at the time the ferryboat approached the place of the occurrence. There Avas a marked conflict in the testimony of witnesses on that subject. That of the pilot on the ferryboat Avas to the effect that, although he heard the whistle, he did ■ not see the launch until he came within 50 feet of it, and that up to that time he had seen nothing to deter him from proceeding into the slip by reason of the darkness; that, if he had seen it at 200 feet from the slip, the course of the ferryboat Avas such that he could have avoided the collision. Other Avitnesses testified that it was cloudy, and had then become dark, or partially dark, so as to render the view of objects at much distance dependent upon artificial light. And in support of this fact evidence on the part of the defense was given tending to prove that it was 8 o’clock, and after. The sun set on that day at 26 minutes past 1 o’clock. On the part of the plaintiff evidence was giAmn to the effect that, at the time of the accident, it was not later than half-past 7 o’clock and that it was daylight—“ perfectly clear daylight.” Some of the passengers on the ferryboat testified that the launch Avas plainly visible, and seen by them Avhen the ferryboat Avas more than 200 feet from it; and some others, who Avere on the Brooklyn shore, and much further than that from the launch, testified, to the same effect. In view of the evidence, the question whether the pilot of the ferryboat ought to have seen the launch when its whistle Avas first blowji, if not before, Avas one of fact for the jury, as Avas also that of negligence of the defendant, in consequence of its failure or omission to observe the launch, and the danger of its occupants, if the ferryboat proceeded into the slip, and to avoid the collision, and the consequences which followed.

It is urged Avith much force by the counsel for the defendant that the plaintiff failed to prov'e that the death of the plaintiff’s intestate was not attributable to the negligence of the persons on • the launch, or of some of them, or that such negligence did not contribute to the accident. It may be that they Avere so situated, Avhen the ferryboat was seen 450 feet away, that if they had supposed that it was destined for the slip which it entered they may have avoided it, although there is some evidence which may be construed to import the contrary. But it may now be assumed, upon the evidence, that they did not know that the ferryboat Avas on its way to that

It is said that they had failed to observe the requirements of the federal statutes relating to navigation, in respect to licensed skill requisite, and in other respects. Those are matters entitled to consideration, but default in that regard does not necessarily, under all circumstances, impute to a party contributory negligence, and deny to him relief for injury resulting from the negligence of another. Nor will a Aressel be excused,-if it fail to adopt reasonable precautionary means to avoid collision with another, although, by the rules of navigation, she would otherwise have the right to keep her course. If, therefore, by the exercise of reasonable care, the running against the launch may have been avoided by the pilot of the ferryboat, the defendant Avas not relieved from liability by the mere fact that those rules were not observed in the means or method of navigation of the launch, although the former was in her usual course, and as she otherwise would have been entitled to run. The Sunnyside, 91 U. S. 208 ; Cooper v. Transportation Co., 75 N. Y. 116 . It is true that those in the launch knew that ferryboats were going from and coming into the slips on the Brooklyn side every few minutes, and, as a boat had recently gone out of the Twenty-third Street Ferry slip they had reason to suppose that another would shortly return to it; and, when they got outside the pier, to go down the river, they must have observed that the tide Avas so strong that it was difficult for a small boat to run against it,—at all events, Avith much headway. If dark, or less than tAvilight, it would seem, without any artificial light on the boat, to have been quite hazardous for them to proceed Avith it. But, assuming, as Ave may, upon the findings of the jury, that it Avas daylight, they Avere entitled, in addition to their oavu efforts, to the reasonable care and precaution of the ferryboat pilots for protection against danger from them. When the ferryboat veered

The examination of the record leads to the- conclusion that the jury were permitted to find that the facts essential to the plaintiff’s recovery had the súpport of the weight of the evidence, and therefore the motion to dismiss the complaint was properly denied.

The defendant’s counsel complains of inquiries made by the court of the pilot of the ferryboat, while he was on the stand as a witness, to test his power of vision. This witness, having stated that he was 61 years of age, and could at the time of the trial see “ all over,” and “ further than some young men,” his attention was called by the court to some printed objects and figures in the court room, and inquiries made of him . to test his eyesight, to which no objection was taken. His ability or inability to see objects at that time, nine months after tho occurrence in question,was not a relevant fact, unless his eyesight was as good at the later as at the other time. The import of the testimony of the witness which led to this further inquiry by the court was that his power of vision was unimpaired and remarkably good at the time he was testifying. We think there was no error to the prejudice of the defendant in the examination of the witness by the justice presiding at the trial.

The case seems to have been fairly submitted to the jury, and none of the exceptions to charge as made were well taken. The verdict was quite large in amount, but, in view of the age,

The judgment and order should be affirmed.

All concur.