
    Alexander McLean, Adm’r, etc., Resp’t, v. The Schuyler Steam Towing Boat Line, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    1. Negligence—When caused by omission—U. S. Rev. Stat., § 4334.
    The plaintiff’s intestate was floating down the river at night on a schooner laden with brick. The schooner carried the usual lights. One of the defendant’s steamboats was at the same time towing a fleet of canal boats in the same direction. The steamboat was connected with the canal boat by a hawser some 500 feet long, and was accompanied by two steam tugs. Plaintiff’s intestate saw the steamboat when she was two miles away, but neglected to show a lighted torch on the quarter of his boat, toward which the steamboat was approaching, as he was required to do. The result was that the schooner was not seen from the steamboat until she ■came abreast of it, and the latter was caught and became entangled in one of the hawsers. The captain of the steamboat sent one of the tugs with directions to pull the schooner off the hawser as soon as possible. In doing this the rudder and some of the planks of the schooner were tom away so that she soon sank. M Id, that the plaintiff’s negligence caused his schooner to be thrown upon the defendant’s hawser.
    2. Same—Pboximate cause op injuby—Cabe and diligence bequibed.
    
      Meld, that the negligence of the plaintiff was not the proximate cause of the injury, but that that was caused by the defendant’s disregard of the consequences of proceeding to pull the schooner off the hawser without taking proper precautions to avoid doing unnecessary injury.
    3. Evidence—When objection fbopeb. ,
    The objection to the question of defendant to the captain whether, in his opinion, anything could have been done by him better than was done, was properly sustained.
    Appeal from a judgment entered in Albany county in favor of the plaintiff’s intestate, John Fatherty, upon the l’eport of a referee. Fatherty has since died and the present plaintiff has been substituted.
    
      Fatherty owned and was captain of a schooner on the Hudson river. On the night of the 8th of June, 1886/ when there was no wind, she was floating down the river on an ebb tide laden with a cargo of brick. She had the usual red and green lights upon her port and starboard sides. These were not visible from her rear. She was about 150 feet from the west shore. The moon was about-two hours and three-quarters high, and the schooner was; in the shadow of the hills on the west bank of the river.
    The defendant’s steamboat the “Connecticut” was at-the same time towing a fleet of sixty canal boats down the river. The steamboat was 500 feet in advance of the fleet and four hawsers connected the steamboat and fleet.
    Two steam tugs of defendant accompanied the steamboat. Fatherty saw the steamboat when she was two miles away. It was his duty then to show a lighted torch upon the pointer quarter of his schooner towards which the steamboat was approaching. U. S. R S., § 4234. This he did not do. The-result was the schooner was not seen from the Connecticut-until she came abreast of the' schooner. The river makes-a sharp turn at West Point, and it was obvious that the-schooner would be caught in the loop to be formed by the-steamboat and flept in rounding the turn. The schooner was so caught, and was thrown upon one of the hawsers-joining the fleet to the steamboat. The referee finds that-the schooner became thus entangled in consequence of the-negligence of her owner and master, the plaintiff’s intestate. While in this position she was carried along with the tow for about two miles.. The captain of the steamboat then sent one of his tugs with orders to get the schooner off the hawser as soon as possible. In doing this, the rudder of the schooner was torn off; also, some of her planks, and she soon sank.
    
      Worthington Frothingham, for app’lt; E. Countryman,. for resp’t.
   Lanbon, J.

—The plaintiff’s negligence caused his schooner to be thrown upon the defendant’s hawser, with which defendant, by means of the steamboat Connecticut, was towing a fleet of canal boats down the river. The schooner was between the canal boats and the defendant’s steamboats. It was plaintiff’s duty to be extraordinarily diligent in getting off the hawser. It was defendant’s duty to use ordinary care to do no unnecessary injury to the schooner in assisting in getting her off the hawser, Mark v. Hudson River Bridge Co., 103 N. Y., 28; 2 N. Y. State Rep., 746.

Upon the facts found by the referee the defendant did not use ordinary care to avoid doing unnecessary injury to-'the schooner, but proceeded to pull her off after being; told that the hawser was between the stern post and the-rudder, and when it was obvious that without removing; the hawser from that position the stern post would be torn' ■off and the schooner otherwise injured.

The finding of the referee is within the evidence, and we see no reason to dissent from it.

The negligence of the plaintiff, by which his schooner fell into this place of danger and became a nuisance to the defendant was not the proximate cause of the injury to the •schooner. That was caused by the defendant’s reckless disregard of the consequences of proceeding to pull the schooner off the hawser without taking the precautions known to be necessary in order to avoid doing her unnecessary injury. True, the referee finds that the schooner’s condition was “desperate” when lying on the hawser between the fleet of canal boats and the steamboat propelling them. But that desperate condition consisted in the plaintiff’s inability to extricate his schooner without the proper precaution and assistance on the part of the men in charge of the steamboat. The proper things to do were suggested by the plaintiff; they would involve a small delay on the part of the defendant; this delay was refused, and the defendant pulled off the schooner in reckless disregard of the consequences reasonably to be apprehended, and which with ordinary care might have been avoided.

The objection to the question put by the defendant to the captain of the steamboat, whether in his opinion anything could have been done by him or his steamboat better than was done, was properly sustained. The negligence charged against the defendant consisted of the simple act of pulling the schooner off the hawser under such conditions as ■must tear the rudder from the schooner. No expert knowledge was needed to understand so simple a situation and its consequences, and the substitution of an opinion for the facts would manifestly be improper.

The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.  