Cooper v. . Eastern Transportation Company , 75 N.Y. 116 ( 1878 )

I am not prepared to assent to the construction put upon the charge by the learned counsel for the appellant, that the rules of navigation prescribed by, and made in pursuance of Federal laws had a different application and force as to the two steamers, from what they should have between the plaintiff and the two steamers; that is, that there was a difference in the sense claimed. I think the learned judge intended only to instruct the jury that in a contest between the two steamers, one of them might be precluded by way of estoppel from insisting upon negligence in the other in acquiescing in the course indicated by its own signals. The case in hand will illustrate the position. The Parker gave a single blast of the whistle which was answered by a single blast from the Grant. This indicated that the steamers were to go to the right, which is the rule when steamers are to meet "head and head," or nearly so, which was the case in this instance. But this is not an unbending rule to be rigidly observed under all circumstances, because circumstances may exist to render it impracticable, and the rule itself provides that if it is deemed unsafe, then the steamers shall go to the left after an exchange of two blasts of the whistle. There are also excepted from the operation of the rule, cases, where steamers are navigating in a crowded channel, or in the vicinity of wharves. Whilst an observance of the general rule would be presumptively right, and would throw the onus of proving that it was negligent upon whoever challenged its propriety, yet if the surrounding circumstances were such as to render it impracticable or unsafe, and these circumstances were known to those in charge of the vessels, or by the exercise of proper care they might have known them, negligence might be imputed, unless the general rule was departed from.

The judge charged in reference to this the rules and regulations "as between the Parker and the Grant, all of those rules of navigation and law might have a strict application. If theParker was suing the Grant, or the Grant the Parker for damages resulting from the collision, it might well be that any technical rule of navigation might be invoked against the other, and held with great strictness, but in this case I charge you that as against this Captain Cooper who had engaged the Grant to take his boat in tow that both of these captains upon theGrant and upon the Parker were bound to use due diligence and prudence to prevent any accident happening to Mr. Cooper's boat, while it was in charge of the Grant, so that, whether theGrant blew two whistles, or blew them at a particular time, or whether the Parker had any right to blow two immediately after blowing one, is not very material as against either, in case you shall find that from the time the Lee was taken in tow to the time of the drowning of this woman, either of those captains did any act which a prudent man would not have done under the circumstances."

In substance the effect of this charge is that the respective managers of the two steamers were bound to exercise proper care and diligence, in the management of their vessels, whether such care required an observance of or departure from the general rules or not, and irrespective of the effect of their force, if the contest was between themselves. I do not think this was error. A blind adherence to the rules is not required by the rules themselves, and it is clear that care and diligence should be used in determining whether in a given case they should be strictly pursued. The rule is that vessels meeting "head on," should pass to the right, but care must be exercised to determine whether this is safe and proper, and if one steamer signals to that effect, the other steamer must also exercise due care in deciding whether it is safe and proper to do so, and this is all that the judge intended to charge.

The question whether there was any evidence to charge theGrant with negligence, down to the time of the collision, is not that I can discover presented in the case. It is not presented on the motion for a nonsuit, because it was claimed that the Grant was negligent after the collision in not cutting loose from the tow, and in not lowering its own boat.

The court submitted the question to the jury in general terms, whether either or both steamers were negligent, and the exception pointed to the remarks of the judge above quoted, touching the difference between the force of the rules as to the plaintiff, and between the respective steamers. The requests to charge assumed that the jury might find that the Grant was negligent in its navigation before the accident, and the judge was not requested to charge that there was no evidence upon which the charge of negligence could be founded. There is therefore no exception presenting this point, and it is not needful to consider that question. But aside from that it is not so clear as to warrant its being taken from the jury that negligence might not be imputed to the Grant for assenting to a change of course, and not insisting upon continuing to the right which might have prevented the collision providing the jury had found that two whistles were blown, signifying such assent, and as to which there was a conflict of evidence.

Again, the Grant knew if he assented that the other steamer would change her course to the left, and although it was proper for her to slack her speed, yet if she had changed her helm to star-board, instead of letting it swing, it is not improbable that the boats would have cleared. The managers of the boats should not be held to any rigid rule, but the case is not one in which it can be decided as a legal question, that they were not both guilty of negligence.

The request on the part of the Grant to charge that the blowing of two whistles by the Parker, was negligent as a matter of law, is not available. In the first place the jury have found the Parker negligent by its verdict, and that is not appealed from, and in the next place I think it was a question of fact for the jury to determine. It is not per se negligent to change the direction of passing, from right to left. It must depend upon the circumstances of each case, and although looking at the circumstances developed on the trial, it is quite clear that a change was impracticable, and that it resulted disastrously, yet I think it was a question of fact, and not of law.

Error is alleged upon the charge of the judge that certain declarations of the plaintiff having been put in and received for the purpose of impeachment could not be regarded as evidence of the facts upon the issues in the case. The fact is not denied that they were received for that purpose, and I think the conclusion of the judge follows. It is unnecessary therefore to consider whether declarations made by the plaintiff before his appointment as administrator would be admissible as evidence of the facts which they tend to prove.

The other exceptions to the charge and refusals to charge as requested, have been examined, and are not regarded as tenable. They relate to the question of contributory negligence, and we think there was no error committed in respect to them.

No substantial error was committed upon questions of evidence.

This court has no power to review the case for the purpose of determining the weight of evidence. If there is no evidence to sustain the verdict, it is a question of law, but it must be distinctly presented, and an exception taken. As we have seen, this was not done upon the question of the negligence of theGrant up to the time of the collision.

The judgment must therefore be affirmed.

All concur, except MILLER and EARL, JJ., absent at argument, and HAND, J., not voting.

Judgment affirmed.