
    Edward Palmer, Resp’t, v. New York and Lake Champlain Transportation Company, App’lt, et al., Def't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    Negligence—Pjroof.
    The injury to a person on a boat in tow by coming in contact with the hawser of another tug and tow in the farmer’s attempt to pass the latter at a place where it ;was dangerous to make the attempt, was held to have ref suited from the negligence of the overtaking tug, and not, therefore, to render the owner of the other tug liable for damages to the party injured.
    Appeal from a judgment in favor of plaintiff.
    
      Potter & Lillie, {J. Sintfo d Potter, of counsel), for app’lts; Shedden & Booth {L. L. Shedden, of counsel), for resp’t.
   Herrick, J.

This is an appeal' by the defendant the Mew York and Lake Champlain Transportation Company from a judgment and order denying a motion for a new trial. At about noon on the 9th day of May, 1891, the tugboat Robert H. Cook, owned and operated by the appellant, left Whitehall, N. Y., with seventeen canal boats, going north through Lake Champlain. About fifteen minutes thereafter, the tugboat E. C. Baker, owned and operated by the defendant the Lake Champlain Transportation Company, left Whitehall, M. Y., with fourteen canal boats in tow, bound northward to the same port as the first-mentioned tugboat. The canal boat of the plaintiff was in the second mentioned tow. About seven miles from Whitehall, there is a sharp turn in the lake known as “ Maple Bend.” At that point the channel is about 150 feet wide. It turns to the east; then again to the west. Before reaching Maple Bend, there is a stretch of the lake about one and one-half miles of straight water, known as “ Long Beach.” The Baker overtook the tow in charge of the Cook at the head of Long Beach, and then gave two blasts with her whistle, that being the signal that she desired to go to the lefthand side of the Cook. The Cook answered by a similar signal, which signified an answer to the request of the Baker. The Cook thereupon moved over to the right hand, and as near as possible to the shore, continuing at the same rate or speed as before. The Baker gradually passed the Cook, and when Maple Bend was reached was about 500 feet ahead of the Cook. The hawser of the Baker was from 150 feet to 175 feet long. A canal boat is about ninety-eight feet in lenght. The plaintiff’s boat as in the third tier of boats in the Baker tow, and on the right-hand, or Vermont, side of said tow. Thus, while the Baker itself, at the time of turning Maple Bend, was some 500 feet ahead of the Cook, a portion^ of the boats it was towing were opposite the Cook and a portion of the boats in its tow. The evidence shows that the passage of two tows of boats at the same time, around the sharp turn of Maple Bend, is dangerous. In turning Maple Bend, the hawser of the Cook was drawn with great force against the plaintiff’s boat, and then slipped and flew over the bow, striking the plaintiff, and causing the injury for which this action is brought. The evidence shows that the Cook had gone as far to the east shore as it possibly could without running aground, and indicates, also, that the Baker, in endeavoring to pass the Cook and its tow of boats, in the sharp turn at Maple Bend, drew the boat of the plaintiff against the hawser connecting the Cook with its tow of boats.

The rules of the United States for steam vessels navigating waters of the United States were, introduced in evidence, three of them being as follows:

Buie 22 : “ Every vessel overtaking another vessel shall keep out of the way of the last-named vessel.”

Buie 23 : “ Where, by rule 22, one of two vessels shall keep out of the way, the other shall keep her course subject to the qualifications of rule 24.”

Buie 24: “ In construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering departure from them necessary in order to avoid immediate danger.”

This case has been once before tried, when a verdict was rendered against both defendants. The present appellant then appealed to this court. The Champlain Transportation Company did not appeal.

Upon the former appeal the court said :

“ Were it not for the testimony which was allowed to be introduced by the court in regard to the local custom on Lake Champlain, that, when one boat passes another, the latter slackens its and allows the former to the evidence does not establish a very clear case of negligence against the appellant.” 76 Hun, 181, 182; 57 St. Rep. 307.

And it was then held that evidence of this local custom was improperly admitted upon the trial, and the judgment was reversed, and a new trial granted, which resulted in the judgment now here for review.

Upon careful examination of the evidence in this case, I fail to find sufficient evidence of negligence on the part of the appellant to sustain the judgment. It seems to me that the accident in question resulted from the effort of the Baker to pass the Cook and its tow in a place where it is dangerous to make any such attempt. The navigation rules offered in evidence provide that every vessel overtaking another vessel shall keep out of the way of the last-named vessel, and that the last-named vessel shall keep her course subject to the qualifications of 'rule 24. The qualifications of rule 24 are that, in construing and obeying the previous rules, due regard must be had to the dangers of navigation, and to any special circumstances which may exist in any particular case, rendering departure from them necessary in order to avoid immediate danger. The only special circumstance in this case was that the water was somewhat narrow, and the tugboat Cook, instead of keeping her course, as provided for by rule 23, departed therefrom to the right or east side of the lake; thereby giving the Baker more room to pass upon the left, as she desired to do. The Cook went as far as possible to the east. She could go no further without running aground. There is no evidence that she was going at an undue rate of speed. There is nothing in the law requiring her to stop in order to let the Baker pass; neither was there any 'obligation resting upon her to do so. If, when Maple Bend was reached, she had then stopped, the testimony shows that such stoppage would have resulted in a collision. She did not run into the plaintiff’s boat. The plaintiff’s vessel was run into her hawser by the Baker. The Cook could not avoid it, except by running or endangering her own line of boats. It was not bound to do either. Upon the whole case, I fail to find any evidence of negligence upon the part of the appellant.

The judgment should therefore be reversed, and a new trial granted ; costs to abide the event.

All concur.  