
    GEORGE S. REPPLIER, Plaintiff and Appellant, v. JOHN T. BAXTER, et al., Dependants and Respondents.
    I. Collision.—Tow.—Tug-boat.
    1. Negligence by defendant; evidence of, what sufficient to cwrry the case to the jury.
    
    
      a. Where the injury complained of was caused by a bark, while being towed down the East river by a tug-boat belonging to defendants, colliding with a pier belonging to plaintiff and damaging it, evidence that there was at that point in’ the river a strong eddy setting in towards the shore, and carrying objects in its influence towards or against the pier, that the bark was being towed by a very long hawser, that she was brought within the influence of the eddy, that she could have been towed so as not to be brought within its influence, that the existence of the eddy was notorious, and that the defendants were engaged in the business of towing in the New York kar- . bor, malees a sufficient prima facie case to call for a submission to the jury.
    
    II. Negligence on pabt of plaintiff ; evidence of, what not
    SUFFICIENT.
    
      a. Evidence, brought out on cross-examination of plaintiff’s witnesses, that there were, persons on board of the bark, and a man standing at her wheel, without showing that they did some act to which the injury could be attributed, and that they were not the servants of the defendants, is insufficient.
    1. The bare fact that the bark sheared in towards the shore does not, under the circumstances, constitute such an act.
    Before Monell, Oh. J., and Freedman, J.
    
      Decided February 28, 1874.
    Appeal from judgment.
    The complaint alleged that the defendants were the owners of a “tug-boat,” which was employed by them in towing vessels. That in August, 1871, such tug boat was engaged in towing the bark “Louis” down the Bast river, and that by the negligence of the persons in charge of the tug boat, the bark was driven against, and suffered to come in collision with, the plaintiff’s wharf or pier, injuring it to the amount of one thousand dollars.
    The answer was substantially a general denial.
    When the plaintiff rested, the defendant moved to dismiss the complaint on the grounds: First, that it had not been shown that the injury was done by the tug boat; and, Second, that by the evidence, the tug boat was exonerated from blame.
    The motion was granted, and thereafter judgment was entered dismissing the complaint, with costs.
    The plaintiff appealed.
    
      Mann & Parsons, attorneys, and John E. Parsons, of counsel for appellant, urged:—I.
    The tide was strong flood at the time, running, therefore, to the eastward. The tug was towing the bark to the westward ; and her object undoubtedly was by keeping as near as possible to the ends of the piers, to get the benefit of the eddy, and to avoid the adverse tide. Though it was the bark which struck the pier, if it was in consequence of the act of the tug, the tug and her owners would be responsible ; the bark might also be responsible, but there could be no question of the liability of the tug (The New York v. Rea, 18 How. U. S. 223 ; Sproul v. Hemmingway, 14 Pick. 1; Cushing v. The John Fraser, 21 How. U. S. 184 ; Sturgis v. Boyer, 24 Id. 110; The Express, 1 Blatchf. 365; S. C., 6 N. Y. Leg. Obs. 401; The R. B. Forbs, 1 Sprague, 328 ; The Hector, 4 Blatchf. C. Ct. 199; The Workman, 1 Lowell Dec. [Mass.] 504). In the case of The Relief, Ole. 104, it was held that for a steam-tug to run along near to ends of the piers is culpable, and of itself constitutes negligence.
    II. If the testimony left the question of negligence in doubt, the case should have been submitted to the jury (Wolfkiel v. Sixth-Ave. R. R., 38 N. Y. 49; Dickens v. N. Y. Central R. R., Id. 23 ; Keller v. N. Y. Central R. R., 24 How. 172).
    III. The nonsuit was improperly ordered, and the judgment should be reversed with a new trial; costs to abide the event.
    Beébe, Donohue & Cooke, attorneys, and Erastus Cooke, of counsel for respondents, argued :—!.
    The mere fact that a collision occurred between the vessel in tow and the plaintiff’s pier is not sufficient to maintain the action against the owners of the tug. Negligence will not be presumed, but must be proved. The plaintiff is required to make proof of some improper act or omission of the tug, and to prove that such act or omission caused the injury. Terry v. N. Y. Cent. R. R. Co., 22 Barb. 574 ; Lannen v. Albany Gas Light Co., 46 Id. 264 ; Shieden v. Hudson R. R. Co., 29 Id. 226 ; Lehman Brooklyn City, Id. 234.
    II. The collision was not caused by the tug, but from the management of the bark. It is demonstrable that had the bark left itself to the control of the tug, the collision would have been averted. But there was a man at the wheel on board the bark, and the vessel could not have taken the direction she did at a right angle with the hawser without holding her helm to the starboard. It was then the fault of the bark and not of the tug that the injury occurred, and for that fault the tug boat was not responsible.
    III. The tug was the servant and under the control of the bark. The presumption, is, there being no proof to the contrary, that she obeyed the directions of the pilot of the bark, and in such case resort must be had to the master and not to the servant (Smith v. The Creole, 2 Wall. Jr. 511).
    There was absolutely no evidence to charge the defendants with negligence, and the plaintiff was properly nonsuited.
   By the Court.—Mottell, Ch. J.

The bark which came in contact with the plaintiff’s pier, was at the time in tow by the defendant’s tug boat. It was therefore necessary-for the plaintiff to show that the injury was caused by the tug.

The bark was attached to the tug by a hawser from seventy-five to ninety feet long. She was being towed down the river. A pier immediately above the plaintiff’s, projected into the river some hundred feet beyond the plaintiff’s. An eddy runs along the ends of the piers, setting in towards the shore, and carrying- objects, within its influence, towards or against the piers. In towing the bark, the tug, as it was alleged, negligently brought it within the influence of the eddy, and it was drifted against the plaintiff’s pier.

It is clear, I think, that if the negligent act of the tug in not keeping farther from the eddy, caused the bark to collide with the pier, the tug was the immediate and responsible cause of the collision, and the only question upon the first ground of the motion to dismiss the complaint, is, whether there was sufficient evidence of negligence to go to the jury.

I think there was. The defendants were engaged in the business of towing in the New York harbor. The eddy was notorious. The parties in charge of the tug must be presumed to have known of its existence, and of its influence upon vessels. They were towing the bark by a very long hawser, which impaired the control over the tow. The tug should have been kept away from the influence of the eddy, or the bark should have been more under the control of the tug. When the tug and bark had passed the upper pier, the latter was brought within the power of the eddy, and it was then too late for the tug to prevent the injury.

This evidence made a prima facie case for the plaintiff.

But it was claimed by the respondent, that the cross examination of the plaintiff s witness disclosed facts exonerating the defendants, and establishing that the immediate cause of the collision was mismanagement on board the bark.

Such doubtless would justify the decision below, if the persons in charge of the bark were not the servants of the defendants. But I have not found any "evidence to predicate such a conclusion. It was testified that there were persons on the bark, and that a man stood at the wheel. But it did not appear that such persons, or any of them, did any act to which the injury could be attributed.

The evidence, therefore, was w7holly insufficient to. cast the responsibility upon persons on the bark.

That was a substantial defense, and the burden of proof was upon the defendant.

I think the dismissal of the complaint was erroneons.

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

Freedmax, J., concurred.  