
    Emory A. Chase and William J. Hughes, Executors of William Donohue, deceased, Resp’ts, v. William Belden, App’lt.
    
      (Supreme Court, General Term, 2Mrd Department,
    
    
      Filed May, 1888)
    
    Appeals —Verdict •— When set aside — Preponderance op the evidence.
    When there is a conflict in the testim'ony of the witnesses, in order to justify an appellate court insetting aside the verdict as against the weight of the evidence, there must he a preponderance of the evidence in favor of the appellant.
    Appeal by the defendant from a judgment entered after a trial at the circuit in favor of the plaintiffs.
    
      E. P. Wheeler, for app’lt; Peter Cantine, for resp’ts.
   Ingalls, J.

A reversal of the judgment is asked by the appellant upon the ground that the parties, who were in charge of the Vanderbilt at the time of the collision, were guilty of negligence, which contributed to the injury of which the plaintiffs complain. Notwithstanding the able argument of the defendant’s counsel, in support of the case of the appellant, we are convinced by the facts that a fair question of fact was presented for the determination of the jury upon that subject. And that the defendant has failed to show a preponderance of evidence in his favor which calls for a reversal of the judgment upon that ground. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415.

The evidence bearing upon that question was conflicting, and its determination by the jury involved an investigation in regard to the conduct of the parties who were in charge of the vessels respectively, not only at the precise period when the collision occurred, but also as the vessels approached each other.

The casualty was upon a dark night. The Yosemite was proceeding northward at the rate of • sixteen miles an hour, and the Vanderbilt southward at the speed of nine miles at hour. :

The Yosemite displayed signal lights, which were unusual, and not authorized, in navigating the Hudson river, in the night time; and thereby violated the laws of navigation. It was claimed upon the trial, and now here insisted upon, by the plaintiffs, that the display of such lights by the defendant, had the effect to mislead and bewilder the parties in charge of the Vanderbilt, to such a degree that they were unable to determine and until the vessels had approached each other within dangerous proximity, from what source the lights proceeded, whether from a vessel, or tow in motion upon the river, or from a dwelling upon the land. Jeremiah Whitaker, a witness produced by the plaintiffs, and who was the pilot upon the Vanderbilt where the collision occurred, and whose evidence is greatly relied upon by the plaintiffs, testified as follows:

“ The first light that I observed in going down the river after we passed Ehinebeck was a red light on a sail vessel beating up. After that I observed a light which proved to be on the yacht Yosemite. I first observed it when I was down between the two ice houses. I saw three bright lights, white ones, I thought they were on a tow, two low lights and one high one. I supposed the two lights were on the canal boat on a tow.

Q. Where do they appear to be, those two white lights ? A. I took them to be on a tow-hawser tier of a tow going down south. I took the high light to be a steamboat’s after-stern light. A steamboat towing other vessels has her stern lights arranged one right under the other, on the flagstaff on the rear end of the boat; they show all around. They are usually placed from a foot and a half to two feet apart. I could not tell exactly how far off these three lights were. They were pretty well down to the Esopus light. I could not tell whether they were above or right opposite the light because they were to the eastward.

Q. How far did those lights appear to be away from you at that time? A. Probably they looked to be a mile. Two vertical lights on the stern, white lights, one above the other, appear at that distance like one light. From my observation I took that high light that I saw to be the two lights of a tow-boat blended in one; when the lights got out of range I looked through opera glasses. At night you can see better with such glasses than you can with the natural eyes,

Q. When the lights got out range what was your judgment of what these lights were on? A. I took them, one to be ashore, the other on the yacht that lay off there to anchor.

Q. You mean by those two lights you took it to be the two low lights? A. Yes, sir.

Q. What did it appear to you then, that this high light was? A. I could not tell what it was; when they got out of range I took the night glasses; -1 looked at the light and all around to see if I could see anything; I could see nothing; I did not see any colored lights, either red or green, in the vicinity of this high light; this high light appeared to be to the westward of us; I could tell from the pilot-house she was off on the starboard; she was starboard of our flagstaff; that light did not appear to me at any time, from the time I first observed it, to be east of us.

Q. To go down around the Esopus light, if what you had taken—if the lights had been what you first took them to be, a tow going down the river, what would have been the best course to take to have passed the tow? A. To the eastward of them; when I made up my mind that it was the tow I saw, I headed my boat more to the eastward; from that point I always kept my course to the eastward; it was a dark night, heavy clouds, and the wind was blowing very hard from the northeast; we did not have any rain on the way down.

Q. On such a night as that was, if there had been a green light on the starboard side of what proved to be the yacht, after you took your glasses up and looked to where you saw this high light was, if it had been a good, bright, green light, would you have been able to have seen it. A. Yes, sir.

Q. I will assume a state of facts; if the yacht had been headed up the river and on a course which would have taken her west of your steamboat, would you have been able to have seen a green light if she had had one on board? A. Yes, sir.

Q. How assuming that she was headed up the river, and on a course which was west of the line of your steamboat, if she had had a good bright, green light, ought it not to have been plainly visible to the naked eye the distance you were apart? A. Yes, sir; I did not at any time before the collision see a green light upon the yacht; before the collision I saw a dim red light on the yacht, I heard one whistle from what proved to be this yacht; I answered them with one; I afterwards gave them two; it was not over three or four seconds between the time I answered his first whistle and the time I gave the two whistles; after I gave the two whistles, I heard two whistles from the yacht; they were given just as quick as they could be given; there were no other whistles given than I have named, from either my boat or the yacht; first, the yacht blew one, and I blew one right after; then I blew two and the yacht blew two; I can’t say for certain whether it was just before he blew the two whistles or right after he blew his two whistles, that I saw the red light; it was one or the other.

Court.—What is the significance of one whistle ? A. To go to the right.

Court.—For each to go to the right ? A. Yes, sir.

Q. What was the significance of two whistles ? A. Each to go to the left.

Q. You say you saw this dim red light; you can’t say with certainty whether it was just before or just after; could you indicate by anything to indicate the time ? A. Ho, sir. I could not. When I first got a glimpse of that red light, I did not see any other lights anywhere alongside that boat, only the white high light. I did not' see the bull’s eye ” lights. I saw them just before she struck us. After the yacht Mowed his first whistle, I answered him right away with one, and then after that there was nothing done. I did not alter the wheel or anything of the kind. I gave him two whistles, the boat was right on our course, and he answered me with two, I hove my wheel hard starboard, and sheered my boat hard a port. I kept the boat going to the port, kept her wheel hard a starboard until I saw there was going to be a collision; I then rung four bells to slow, stop and back. I had a bell pull going down m the engine-room. I worked pretty quick; there was no time to be lost there. Immediately after I gave him the four bells, the engineer ■ stopped and reversed the engine. The wheel had made from three to four turns backward from the time I gave the bells until the collision took place. I think six or seven turns would have stopped it; I don’t think it would have stopped her, but it would have stopped her headway. The three or four turns had materially stopped the headway of my boat. After the yacht had given the two whistles, it looked to me as if her pilot hove his wheel the wrong way and went to the eastward, the same way I did.

After the two whistles were given, the yacht headed to the eastward. After I hove my wheel over, the yact came to the eastward faster than before, followed us right up. The bull’s eye lights showed to me from the yacht, after she appeared to be sheering more to the easterward. The yacht struck us right on our starboard bow; she went right through us, came out on the port side. I think the point where she struck us was nearer to the bow than when she came through. Up to that time I could not say -that the yacht had slackened her speed. She appeared to be running very fast; I think she was making from fifteen to sixteen miles an hour with the flood tide; probably more; I could not tell exactly; I know she was running very fast. My boat went down after she ran through and cut the end off. The bow of the boat was cut entirely loose, so it floated off. She went down head-first — what was left of her. When I first heard the first whistle, the yacht appeared to be about 500 yards distant; might have been less; from the time the yacht gave the two whistles, I don’t think we made three times our length before she struck us.

Court.—About how far do you think ? A. I could not tell hardly.

Q. You are satisfied that your boat had not run three times her length ? A. Yes, sir ; my boat was a little over 200 feet long; she struck us while we were backing.

Q. Your engineer did not stop backing at all until you hailed him ? A. No, sir; when the four bells were rung I could not tell how far apart we were ; I knew they were not a great ways apart, how far I could not get; it may have been 200 or 100 feet; I can’t tell anything about it.

Q. When was it that you first observed that the yacht appeared to be heading to the east of you, so that she had run across your bow ? A. I could not tell that; I could not answer that hardly.

Q. In reference to the time that you heard these whistles, the two whistles, was it before or after the two whistles were given that she appeared to be headed across your bow ? A. After I gave her the two whistles.

Court.—When the one whistle was given how did she appear headed ? A. I could not get much range only by the high light; I could not tell.

Q. But when you saw that high light when the one whistle was given, over which bow did you see the high light ? A. Over the starboard bow.

Court.—That is westerly of the channel ? A. Yes, sir.

Q. What reason did you have for changing from one whistle to two whistles ? A. Because it was not safe for me to go across her bow to the westward of her.

Court.—Where was she when you gave the one whistle ? A. She was to the westward of me.

Q. Then you gave her two whistles because it was not safe to go to the west ? A. Yes, sir; at the time the one whistle was given I could not have thrown my boat to the westward and passed her without collision on the west side; that was the reason I gave the two so quick ; when I gave the two whistles and he had answered them with two whistles, if he had ported his helm he would have cleared us; he could have passed with safety on the west side without a collision.

.Q. In running down the river that night from Rhinebeck to the time of the collision, did you run or keep in about the same part of the channel of the river that steamboats usually run in going down the river? A. Yes, sir.

Q. In coming up the river after you round the point, after you round Esopus light, on what land or point do you head ?

Q. (Showing Exhibit A.) Look at this map and tell us ; here is a steamboat coming up ; they come around Esopus light? A. Yes, sir.

Q. In running up the river where do they head first ? A. I know where I head for; I head to the west of the Kingston light, that brings me off outside Port Ewen dock, west of the Swaney Plat; after I get past that, I head over towards Rhinebeck, going right on up the center of the channel; in running up the river, turning Esopus light, no steamboat can run on one course so as to get past Rhine-beck and steer clear of the Swaney Plat.

This witness was cross-examined by the counsel for the defendant, not only in regard to his testimony upon that trial, but also in regard to his evidence upon a previous trial, with the view obviously to show that his statements had been inconsistent and contradictory. The jury witnessed the entire proceedings, and we must assume that they attached to the evidence of this witness the weight to which it was justly entitled when compared with the other evidence in the case. The witness was further- examined, and stated “my recollection is now clear that it was about the time of the two whistles being given, and not before the first whistle, that I saw the red light.” The plaintiffs supported their case, upon the trial, by other witnesses who were present when the casualty occurred, and their evidence mainly coincided with that of Whitaker. The plaintiff’s theory, and the evidence by which it was sought to be sustained, were assailed by the defendant upon the trial, and evidence was produced by the defendant which created a sharp conflict in regard to the main features of the case, and particularly with reference to the question of contributory negligence. It appears by the plaintiff’s showing that when the pilot of the Vanderbilt first discovered the light, which was subsequently ascertained to proceed from the Yosemite, the two vessels were not less than a mile apart, and approaching each other at the combined speed of at least twenty-five miles to the hour. It appears that the pilot, Whitaker, immediately commenced to investigate the lights, with the view to ascertain from what they proceeded, and, according to his evidence, it appears that the lights displayed by the Yosemite were unknown to him, and changed so rapidly in their appearance, as the vessels neared each other, as to baffle his inquiry, until they had approached within dangerous proximity, when he discovered the defendant’s vessel. When the vessels were about 500 yards apart, one whistle was blown from the Yosemite, which indicated an election, by those in charge of that vessel to pass to the right of the Vanderbilt, which was answered by one whistle from the last-named vessel, which indicated an assent. Immediately thereafter two whistles were given from the Vanderbilt, which indicated that those in charge of that vessel desired to pass to the left of the Yosemite, and these were replied to from the Yosemite by two whistles, which manifested their assent. It is quite apparent that, at this juncture, little opportunity was afforded the parties in charge of the respective vessels to calculate, to plan, or execute, with any degree of deliberation. The collision occurred a few moments after the two whistles were given from the Yosemite. The witnesses, on the part of the plaintiffs, gave their version of the transaction, and explained their conduct in the management of the Vanderbilt. The witnesses in support of the defendant’s theory, testified to a state of facts which were in direct conflict with the testimony of the plaintiff’s witnesses upon matters which were material. A careful consideration of the facts has led us to the conclusion that the case was one proper for the consideration of the jury, and that their determination should not be disturbed. The counsel for the defendant practically ignores the consideration pressed by plaintiffs’ counsel, that the display of the erroneous signal lights by those in charge of the Yosemite had the effect to bewilder and mislead those in charge of the Vanderbilt, and thereby influenced their conduct in the management of that vessel. We deem that is as pertinent and important element, as bearing upon the question of contributory negligence. The defendant committed a grave error at least in navigating his vessel in the night time upon the Hudson river with such lights; and, under the peculiar circumstances of this case, it became, we think, an important inquiry by the jury as to how far that error of the defendant may have reasonably influenced the conduct of those in charge of the Vanderbilt, in the management of that vessel, as bearing upon the question of contributory negligence. In actions of this nature, that question is regarded by the court as one peculiarly within the province of the jury to determine in the light of all the facts and circumstances of the particular case. And their decision will not be disturbed, unless the most satisfactory reason therefor is established by the party complaining thereof. Pomfrey v. The Village of Saratoga Springs, 104 N. Y., 459; 5 N. Y. State Rep., 802; Cahill v. Hilton, 106 N. Y., 522; 11 N. Y. State Rep., 26; Probst v. Delamater, 100 N. Y., 267, 271; Shook v. The City of Cohoes, 28 N, Y. Week. Dig. 122; Patten v. Pancoast, 14 N. Y. State Rep. 75 Decided By the court of appeals. The judgment must be affirmed with costs.

Learned, P. J., and Landon, J., concur.  