Hunt v. Hoboken Land & Improvement Co. , 1 Hilt. 161 ( 1856 )

Beady, J. —

Tbe first point presented by tbe appellants is not sustained by tbe objection taken on tbe trial. There was no objection to tbe testimony of tbe witness on tbe ground that be was not an expert, or that there was no evidence of bis capacity as such. Tbe objection was, that there was no evidence to show that be was acquainted with tbe course of tbe ferryboats,- and thereupon, to meet it, tbe witness was interrogated as to that course, and answered that be was acquainted with it. The objection was then overruled by the presiding judge. That was, perhaps, unnecessary, inasmuch as tbe witness by bis testimony removed tbe objection. He was acquainted with tbe course of tbe ferryboats, and thus possessed tbe only qualification required by the counsel for tbe defendants. We have held, in accordance with the rule which prevails in all the courts, that we will not consider an objection presented on appeal, which, if taken at the trial, might have been obviated by the respondent, and that rule must be applied to the objection which is the subject of the first point.

The third, fourth and fifth points must be decided against the appellants. The verdict was not clearly against the weight of evidence, and cannot be disturbed for that reason. The questions submitted to the jury were questions of fact, peculiarly and exclusively within their province, to be determined by them upon the legal rules suggested on the trial, which should govern their deliberations. There are few cases presented in courts of jui^lce in which a contrariety of testimony is not given, and this case is not within the exception. For these reasons, unless the presiding judge erred in declaring the law, the finding is conclusive.

The judgment of the Common Pleas, rendered on the appeal from the Marine Court, was not conclusive. It was not predicated on the merits of the controversy. The appeal was not upon the absence of any cause of action, but for errors of law committed by the court below, which were corrected, the judgment reversed and the parties remitted to their original rights and obligations. This is expressly adjudicated in this court (Ellert v. Kelley, 10 How. 392), and renders the consideration of the question, whether section 830 applies to appeals from the Marine and justices’ courts, unnecessary. If the judgment of this court, on that appeal, had been otherwise, the proposition of the defendants’ counsel would be incontrovertible, and that judgment a bar to this action.

No exception to the charge of the presiding judge was taken, but the appellants insist, in their second point, that he erred in permitting testimony to be given as to “the-custom or course of navigation among pilots when their vessels are meeting at right angles,” inasmuch as the statute and the common law defined what their course should be, and insists also that it was a question of law. We have no hesitation in adopting the view of the statute expressed by Judge Woodruff, in delivering tbe opinion on tbe appeal from tbe Marine Court, and in bis charge to tbe jury in tbis case. When vessels meet at right angles, and a collision occurs, tbe question presented is one of negligence, and depends upon tbe general considerations which govern such questions, and not upon tbe statute regulation upon which tbe defendants rely. If steamboats meet on lines parallel to each other, whether proceeding up and down a river, or crossing it diagonally, tbe statute applies equally to them; and it becomes incumbent upon them each to go towards that side of tbe river which is to tbe starboard or right of such boat, as required by tbe statute. The observance of that statute under such circumstances, where it is not impossible, would, it seems, obvióte a collision beyond all question; but, when vessels meet at right angles, the observance of such a rule might often result in the v very catastrophe the statute was designed to prevent. It cannot be denied, with any propriety, that if a steamboat be proceeding down a river, and is met at right angles by one crossing it, the effect of each going to starboard might, in many instances, throw the vessels together by the sheer which invariably follows from such management. The consideration of that fact alone, without reference to the nautical rule on the subject, would seem to reject the theory, that in such instances the statute must apply. Yessels are to meet each other head to head or bow to bow to induce a compliance with the statute, and the extension of its provisions to any other situation of vessels, in the absence of proof showing its utility and safety, would be a dangerous exercise of judicial power. All these elements went to the jury in unexceptionable form. They were instructed not only on the legal propositions involved, which were correctly stated, but upon the questions of fact upon which they were to pass. The evidence objected to was in perfect harmony with the rule adopted by the court, and its reception unavoidable. The objection was therefore not well taken, and there being nothing in the bill of exceptions which will justify us in disturbing the verdict the judgment must be affirmed.