
    The Rockland Lake Trap Rock Company, Appellant, v. The Lehigh Valley Railroad Company, Respondent.
    Second Department,
    November 21, 1906.
    Negligence — relation between tug and its tow-—tow injured in collision of . tugs — concurrent negligence — evidence of freedom from contributory negligence. '
    
    The rule of English admiralty that a tug is the agent or servant of its tow so ■ that the tow is responsible for the negligent management of the tug, does not obtain in the United States, but the circumstances of each ease control, and the doctrine applies that every person who is injured through the negligence of another without fault on his own part is entitled to a remedy.
    Hence, where a scow lashed to the side of the tug which was towing it was injured in a collision with another tug, it is error to charge that the owner of the scow cannot recover if the negligence of the tug towing it contributed in any way to the collision, for if the owner of the scow in hiring a seaworthy and competently manned tug surrendered the navigation to it under such circumstances that no active duty remained for him to perform, he is entitled to a recovery notwithstanding the concurrent negligence of such tug.
    Evidence of inability to exercise any care is evidence of the lack of contributory negligence.
    Appeal by the plaintiff, The Rockland Lake Trap Rock Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rock-land on the 2d day of February, 1906,'upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1906, denying the plaintiff’s motion for a new trial made upon the minutes. '
    
      Amos Van Etten [Harvey De Baun with him on the brief], for the appellant,
    
      William Lloyd Kitchel [Allan McCulloh with him on the brief], for the respondent.
   Woodward, J.:

A single- question is presented for review upon this appeal, and that involves the charge made to the jury. The action was brought to recover damages for injuries sustained by a scow in a collision with a steam tug owned by the defendant. The plaintiff was the owner or charterer of the scow Helen on the 'Tth day of June, 1904, and on that date the scow was taken from Newtown creek by the tug Ira II. Hedges. The Helen was on the starboard side of the tug, and the scow Hastings Pavement Company was on the port side of the tug, both being lashed to the tug, and, so far as appears from the evidence, these two scows were owned by different parties. While the tug with the two scows was in the center of the North river, somewhere in the vicinity of Barclay street ferry, the defendant’s steam tug Slatington collided with the plaintiff’s scow, damaging it to an extent which is not in controversy, the only question being the defendant’s liability. There was some evidence in the case tending to show that the accident was in part due to the negligence of the tug Hedges, and the learned court, in its charge to the jury, said: “I submit the question of negligence to you whether the Hedges was guilty of contributory negligence as matter of fact.” And : “ I charge you as matter of law that if the master of the tug Hedges was careless, the plaintiff here is charged with that carelessness. If the. master of the tug Hedges, in navigating .this boat on that day, was guilty of carelessness, that justifies you in holding the plaintiff guilty of contributory negligence.” And: “No matter if he (the master of the Slatington) was careless, if both were careless, the verdict must also be for the defendant.” By request the court also charged that, “ If the jury find that the tug Ira II. Hedges or .the persons in command of such tug were guilty of negligence which in any way contributed to the collision, the plaintiff cannot recover.” The.plaintiff excepted to the charge in this respect, and we are to consider whether under the circumstances this was a correct exposition of the law.

It is conceded that the English admiralty and law cases hold that the tow is in command; that the tug is the agent or servant of the tow, so that the negligence of the tug is imputed to the tow, but it is urged that a different rule applies in the United States, though we are unable to find any adjudicated case which clearly meets the present situation, and we are inclined to believe that the law depends upon a question of fact, whether the circumstances are such as to make the tow the master and the tug the servant, or whether the contract between the two is such that the master of the tug is responsible for tile navigation. In the former case the tow wbuld have to accept the responsibility for the negligence of the tug, while in the latter, if the. master. of the tow was free from negligence, he would be entitled to recover, notwithstanding the concurrent negligence of the tug. The responsibility of the tow during navigation,” says the American and English Encyclopaedia of ■ Law (Vol. 28, [2d ed.] p. 270) “ is dependent on the mode of towage; Where the tow is lashed to the side of' the steam tug and depends entirely upon the latter as well for steerage as for motive power, the, responsibility for the navigation of both is wholly on the. steam tug, as the tow is as completely under the control of the steam tug as if she were apart of that'vessel. Cases arise, however, where the'.tow is propelled by a’hawser extending from the forward part of the tow to the stern of the steam tug, and in sueli cases a different rule applies. * * *' While a tow propelled by a line or hawser is in a general sense under the control of the tug, Still there are certain duties incumbent on it. It must obey all proper orders ' of the tug,, be steered properly and follow as far as possible in the wake of the tug, and, in short, perform all those duties which nautical skill demands for the proper management of a tow.”

This is but another way of saying that every man is bound to use ' that degree of care and skill which the circumstances of his situation demand, as a condition of recovery in the event of damages sustained through the negligence of others, and this, we apprehend, is the true rule of law in all cases of this character. If the tow is in a position to exercise any degree of care, it is bound to do so-; if'it is not, then the fact of its helplessness in the situation is evidence of a lack of contributory negligence, and it may recover upon showing the negligence of .the defendant constituting the proximate cause of "the collision. Mr. Justice Clifford, in The Galatea (92 U. S. 439), says: Owners of ships appoint the master and employ the crew, and consequently are, as a general rule, held - responsible fbr the-conduct of both in the navigation of the vessel. Exceptions exist to that rule in certain cases; as where the craft is one without sails or steam apparatus, or where the difficulties of the navigation make it necessary to employ a steam tug, and to turn over the control and navigation of the ship to the master and crew of the latter vessel. Steam tugs are usually employed in such cases, but the owners of the ship or other craft do not necessarily in that event constitute the master and crew of the accessory motive power their agents in performing the service, as they neither appoint the master of the steam tug or ship the crew, nor can they displace either the one or the other. (Sturgis v. Boyer, 24 How. [U. S.] 122.) Beyond doubt, they are under obligations to employ a sea-worthy steam tug, as the accessory motive power to their own ship or craft; and they continue to be responsible for the negligence, omission of duty, or unskilfulness, of the master and crew of their own vessel.” (See Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470, 479.)

It was conceded that it was not necessary to decide these questions in the case cited, but we are of opinion that the law as suggested in the above excerpt is in harmony with the weight of authority, and it is clearly in line with the tendency of the courts of this country in the matter of imputed negligence. In Little v. Hackett (116 U. S. 366) the court distinctly repudiated the English doctrine that one who trusts himself to a public conveyance is in some way identified with those who have cliarge of it, in such a way that he cannot recover unless the persons in charge might recover, and this is now generally regarded as the established law of this country.

While there is, perhaps, more of conflict, it is now regarded as settled in this jurisdiction that the true principle seems to be that when a person is injured by the negligence of the defendant and the contributory negligence of one with whom the injured person is riding as a guest or companion, such negligence is not imputable to the injured person ; while, on the other hand, it may be imputable when the injured person is in a position to exercise authority or control over the driver.” (7 Am. & Eng. Ency. of Law [2d ed.], 447, 448, and authorities cited in note 1 on latter page,) Indeed, it has been well said that there can be no such thing as imputable negligence except in cases where that privity which exists in law between master and servant and principal and agent is found. In order that the negligence.of one person be properly imputable to another, the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim qui facit per alium, facit per se is directly applicable, and the mere fact that the tug boat in the. case at bar was employed to tow the -plaintiff’s scow does not establish that relation.

While, perhaps, the facts as brought out on the trial did not leave .the situation entirely clear, we are of opinion that the charge of the learned trial court did not correctly state the law of the, case, and that for this reason there should be a reversal of the judgment and a new trial. As we understand the law of negligence, every man who is injured through the fault of another,, without fault on his own part, is entitled to a remedy, and if the plaintiff in this action, in hiring a seaworthy and competently manned steam tug to tow his scow, surrendered the navigation to the latter, under such circuinstances that no active duty was left for him to perform, then lie is entitled to recover, notwithstanding the concurrent negligence of the steam tug which was in charge of the tow.

The judgment and order appealed .from should be reversed and a new trial granted, costs to abide the event.

Hirschberg, R. J., Hooker, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the final award of costs.  