
    Sarah Young, as Administratrix, Appellant, v. The Staten Island Rapid Transit Railroad Co. et al., Respondents.
    (New York Superior Court—General Term,
    May, 1894.)
    In an action for injuries'caused by a collision between defendant’s steamboat and a tug, it appeared that the steamboat, upon sighting the lights of the tug, which was crossing its course, gave the customary signals, which were not answered, and then, when near the tug, stopped and backed; the tug, which had been going at her usual speed as she approached the steamboat, then went at full speed and the collision occurred. The captain of the tug was unable to testify positively that the steamboat was moving after she stopped. Held, that in the absence of any proof that the pilot of the steamboat failed to use the ordinary skill in selecting the point of stopping its engines, negligence on defendant’s part was not shown.
    Plaintiff’s ■ exceptions ordered to be heard in the first instance at General Term.
    
      Fullerton da Sc/iarps, for appellant.
    
      Tracy, Bocurdman c& Platt, for respondents.
   Sedgwick, Ch. J.

The action was under the statute for damages for the death of the intestate that, as alleged by the complaint, had been caused by the negligence of the servants of the defendants.

On the trial the complaint was dismissed. The exceptions were ordered to be heard in the first instance at General Term.

The collision occurred in the water of the harbor of New York. The defendant gave testimony that its steamboat was going down the river in a southwesterly direction. The tugboat, of which the intestate was the cook, and was aboard at the time, appeared as she had just rounded the Battery and was going in a northwesterly direction. Both had green and red' lights in the proper places as required "by the rules of the harbor. On seeing the lights of the tugboat the steamboat whistled successively three times. She was a high steamboat with many lights. The tug did not see her or hear her, and did not attempt to leave her a free course. The defendant claims that it is evident that the tug was in the wrong, under the rule of navigation (13 Stat. at Large, 60 ; April 39,1864):

If two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other.” The tugboat had the steamboat on her starboard side. The defendants-claim that they are not liable, because of the tugboat’s violation of the statute. The rule to be applied to a case in which there is a collision of the kind referred to is amply stated in Hoffman v. Union Ferry Co., 68 N. Y. 390: The question is one of negligence on the part of those in charge of the respective vessels, and the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury, and if it appears that the injury was caused solely by the negligence or want of proper care and caution in the management of either of the vessels, and that the disregard of the statutory regulations did not contribute to the injury directly or indirectly, the mere omission to comply with the statute will not bar an action by the injured vessel, if otherwise free from fault, against the one by whose neglect the injury was caused,”

The facts were that the course of the steamboat was about southwesterly, and that of the tugboat was about northwesterly. While afar off, the steamboat, sighting the tug, gave the customary whistles. The tugboat did not answer. The steamboat went on until she came near the tugboat. If the collision happened then it might be argued that it was caused by the tugboat’s neglect of the rules for the navigation of the harbor. But when near the tugboat the steamboat stopped. At that point she was bound to use ordinary care, prudence and skill to prevent a collision with the tug. The question then is, did the plaintiff prove that the steamboat neglected that duty.

The captain of the steamboat was called as a Avitness by the plaintiff and testified: I stopped and backed; I was, I suppose, 100 to 200 feet broad off from the tug when I began to stop my boat. I stopped the engines and backed the boat; stopped her still.” The testimony of the other witnesses on the point did not contradict or modify this testimony.

The pilot of the tugboat testified that the steamboat had to move to strike the boat. This was upon the theory that the tug did not herself move on to contact with the boat. In fact, it appeared that after going at her usual speed, as she approached the steamboat, in a sidling direction, she went at full speed.

The captain of the tugboat, a witness for the plaintiff, testified : “ Q. Was she going at the time? A. No, I guess she was stopped. I guess she must have been moving. Iler engine had stopped, but she had some way on her. I will not swear that she was moving at all by the ground. She must have had some way on. If she had not I don’t suppose she would have hit us; we were moving.” Much of this does not speak of fact, but of inferences.

The defendants did not call witnesses.

On the plaintiff’s caso I am of opinion that, after stopping and backing, the steamboat was not moving immediately before the collision. If this be not correct, then another fact that appeared in plaintiff’s case must be considered. If the steamboat had been a few feet farther away from the tug no collision would have taken place. Now, there was no proof that the use of ordinary diligence in selecting the point of stopping the engines of the steamboat would have resulted in the steamboat’s coming to rest short of the few feet that have been attested. There may have been no want of ordinary judgment. It was not proved that, under the circumstances, the pilot of the steamboat did fail to use the ordinary skill. One of these circumstances was that the tug was moving at the usual rate. This might have caused, Avithout negligence, a mistake of a few feet. It mu.st be kept in mind that the fact of the collision by and of itself does not prove that defendants were negligent.

The result being that uhe plaintiff did not show negligence on the part of the defendants, it is unnecessary to examine the. other questions in the case, as to whether the tugboat was negligent, and if it was, as to whether that would prevent a cause of action in the plaintiff because he was one of the crew.

Plaintiff’s exceptions overruled and judgment ordered for the defendants, with costs.

Freedman and McAdam, JJ., concur.

Exceptions overruled and judgment ordered for defendants, with costs.  