
    James Moore, Plaintiff and Appellant, v. John J. V. Westervelt, Sheriff, &c., Defendant and Respondent.
    1. TJpon a question of negligence in mooring a vessel, it is proper to aslc a witness, who has been shown to be competent to give an opinion, what was the condition of the fastenings of the vessel, as to safety; this is a subject of science and experience, not of common knowledge.
    2. A Sheriff, in respect to property in his custody, is bound to exercise that degree of care, and no greater, which a careful, prudent man of good sense and judgment would exercise respecting such property, if it were his own.
    3. The provision of section 215 of the Code of Procedure, which requires the Sheriff taking personal property in proceedings of claim and delivery, to keep it in a secure place, does not require him to remove it from its place of deposit, unless it is unsafe there; and if that place be a vessel at a ■wharf, he is bound to see that it is properly moored, secured and fastened, against all ordinary perils of winds and waves, and if necessary, protected against any storm or gale, after it arose, by every means within his reach, which a prudent man would use for the purpose, either by removing the vessel to another place, or otherwise; but he is not bound to anticipate a storm of so unusual violence as not to have been reasonably expected.
    
      4. Thus where, in an action to recover the possession of a cargo of coal, from the master of a vessel lying at a pier in the port of New York, the Sheriff took possession, and put a keeper in charge of the coal, with the consent of the master, and the vessel sunk at the wharf during a violent storm; Held, in an action to recover from the Sheriff the damages sustained by the coal, and the expense of raising it, that it was only the duty of the Sheriff to take such steps to insure its safety, as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel, and her location with regard to exposure to storms, and having all the power of the Sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself.
    5. In such action, where the Court properly instructed the Jury as to the Sheriff’s duty; Held, that a request to charge that the Sheriff is responsible for the negligence of the master and crew, after he took possession, was not proper in form, and it was not error to refuse it.
    
      6. Held further, that the verdict for the defendant was not against the weight of evidence in this case, and that judgment thereon should be affirmed.
    (Before Moncrief, Robertson and Monell, J. J.)
    Heard, October 6; decided,
    November 29, 1802.
    This was an appeal by the plaintiff from a judgment entered on a verdict recovered by the defendant, as well as from an order made by the Oourt at Special Term, denying the plaintiff’s motion for a new trial.
    Before the trial now under review, this case had been tried several times before a Jury. On the first trial, the Jury found for the defendant, and on appeal, the judgment was reversed and a second trial ordered. That decision is reported'in 2 Duer, 59. The reader is referred to that report of the case for a statement of the pleadings. The second trial was had in March, 1856, when the Justice directed the Jury to find a verdict for the plaintiff, subject to the opinion of the Oourt at General Term, upon which the Court gave judgment for the plaintiff. That decision is reported in 1 Bosw., 357. Upon appeal to the Oourt of Appeals, the judgment was reversed and a new trial ordered. That decision is reported in 21 E. Y. B., 103.
    The cause was tried again on the 18th of February, 1862, before Mr. Justice Babbour and a Jury.
    Evidence was given to show a proposal by the defendant to the plaintiff to take the cargo when seized by the present defendant, and a refusal by the latter officer to allow him to do so, and some evidence in contradiction thereto.
    Considerable testimony was taken , as to the condition of the vessel in reference to loading or leaking, her fastenings, the character of the storm, the previous probability of its taking place, and its direction, also the possibility of removing the vessel while it continued, and saving the cargo.
    Several witnesses, including the mate and a hand on board of the vessel, testified to her deep lading; the captain placing her deck within three inches and another witness four, from the surface of the water. The former testified that three or four tons were put on her deck after she was loaded; another witness, (Simpson,) testified that she was “much out of repair.” In regard to the leakage, a hand on board, (Quin,) testified that she leaked a hundred 'strokes an hour when on her passage under sail: the master (Hoffman) reduced this to twenty-five to thirty strokes per hour when she started. The mate testified to fifty strokes in twenty-four hours, when she was at the wharf: “ six inches clear board” were pumped out. The master stated that she was “ required to be pumped twice a day, and he kept her pumped out all the time:” the mate, that he saw she was pumped out every day. Quin testified that the night before she sunk, “ he was pumping her all night;” that she began to leak more than usual about five o’clock in the afternoon before, and that it rained and blew the day before harder than the previous night. The wind began to increase on the afternoon of the second day before the sinking of the vessel, went on increasing next day and during the night, and she sunk at half past four o’clock in the morning.
    As to the fastenings the master of the vessel testified that she had “ enough to hold her:” the plaintiff admitted “that when she was raised, after being sunk, one line remained fastened.” Charles H. Hallenbeck, the keeper put on board by the Sheriff, stated that the hawsers by which the vessel was fastened were of the kind usually used for the purpose, a large rope ; that he should judge she was safely moored, and the fastenings were proper fastenings for a vessel in that condition; he had seen vessels often before moored in that way, but sometimes with a storm they had broken those fastenings. He admitted, however, that he had not examined the particular fastenings to see their character.
    This witness,,in reference to his experience as to such ■ subjects, stated as follows :
    “ At the time this coal was taken by the Sheriff I was assistant to Dunlap, Deputy Sheriff; I had been in freighting establishments from 1837 to 1844, where we had vesseis running from Hudson to Hew York; Iliad been clerk on board of a steamboat for some three years; I had charge of the mooring of the vessel when the captain was off; he did not leave that altogether to my charge, but to the pilot’s and mine; I think I understood it.” * * * *
    Q. What kind of hawsers was the vessel fastened by ? were they the kind usually used for that purpose ?
    A. I should judge they were; a large rope.
    Q. Please to state what was the condition of the fastenings of this vessel as to safety ?
    This question was objected to on the ground that it was not a question of science, and that the Jury were just as «competent to judge of it as the witness. The objection was overruled, and an exception taken.
    A. I should judge that she was safely moored.
    Q. By the Court: You mean to say that the fastenings were proper fastenings for a vessel in that condition ?
    A. Yes, sir. I have seen vessels, time and time before, moored in the same way.
    The vessel lay to the north of the wharf on the East . Biver, to which she was fastened, which ran at right angles to the bulkhead of the mainland; and in that position she was exposed to the force of a northeasterly wind, which was that which prevailed in the storm which sunk her; on the south side of the pier she would- have been greatly protected from such wind. An expert for forty years who was examined as a witness for the defendants (Capt. Cole), testified that he knew all about the piers, and had “ seen “ how storms act. In laying up a vessel in good weather “ a man does not generally expect a storm from either “way;” * * * “ consequently will as soon lay his vessel “ on one side as the other.” That a storm in September would blow “ more likely from the south than the north “ at that season of the year; that no greater danger would “ be incurred from mooring a vessel on the north than the “ south side of the pier;” that the wind often changes its' direction in a storm, from northeast to southeast. That it was not usual to have a very severe September gale in Hew York. He was corroborated by another witness, (Earl). The vessel’s keeper testified that the wind was blowing quite “ heavy ” two days before the sinking of the vessel; it was likely to prove a pretty heavy storm ; on the next day “it was a very heavy line gale, a “ September line storm and a very heavy one too.” The captain stated, “It was a pretty bard storm.” A witness who bought and raised the sunken vessel, (Simpson,) testified, “the gale was very severe on that side of the “ river, the tide was eight or ten inches higher than in the “ gale of 1847,” and that “ if she had all the fastenings on “ in Hew York, the probability is she would have sunk, “ the cause of her sinking was the effect of the storm, she “ being so much out of repair and very heavily laden.” Capt. Cole also testified that it would be dangerous trying to move a vessel laden to the water’s edge, round a pier when a gale is blowing hard enough to sink it; “ it “ would be very likely, (if not to knock a hole in her,) to “ wash the water on her deck so that she might fill and “ sink, deeply ladened as she appeared to be.” Another witness (Earl) stated, that in a northeast gale it would not be safe to take a vessel round a pier, from its north to its south side, “ the current would be so strong and the swells “ so large, that it would be apt to force her against the “ dock, and probably jam a hole in her side, or break over “ and sink her, if she was heavy laden.”
    The vessel sank precisely at the spot where she lay, and remained parallel to the wharf, when she was raised; which, as the plaintiff admitted, was pretty nearly straight.
    The Court instructed the Jury “that it was the duty “ of the Sheriff to take such steps to insure the safety of “ the coal as a careful and prudent man of good sense and “judgment, well acquainted with the condition of the ves- “ sel, and its location with regard to exposure to storms, “ and, having all the power of the Sheriff in the matter, “ might reasonably have been expected to take had the “ coal belonged to himself,” and if they came “ to the con- “ elusion, that the Sheriff did not take that degree of “care for the preservation of the coal” which he had “ thus indicated, and that the injury was occasioned by “ the negligence of the defendant and his officers,” the plaintiff would be entitled to a verdict. And he further “ instructed them that “if such an owner as he had indi- “ cated would have taken the coal from the vessel, as it “lay at the wharf in the first instance, the Sheriff was “ bound to do it. He was bound to know the condition of “ the vessel; whether it leaked, whether it was seaworthy “for the place in which it lay, how deeply laden, every- “ thing in regard to it, and he was bound to put on board “ the vessel, if necessary, such men as would pump her out “ and keep her in a condition to insure the safety of the “ coal.”
    The plaintiff’s counsel requested the Court to charge the Jury:
    First. That the Sheriff was bound to take more than ordinary care of this property, and if for want of more than ordinary care the property was lost, he is responsible.
    Second. That if the sinking happened from wank of due caution, either by the Sheriff, Deputy Sheriff, captain, mate or hands of the vessel, then the Sheriff is responsible.
    Third. That the Sheriff was responsible for the negli-' gence of the master and crew after he took possession.
    Exceptions were taken by the plaintiff’s counsel to the alleged omission of the Court to charge each of such propositions.
    The Court also charged the Jury, “ that if a prudent man, “ in the case of his own vessel, would not have removed “ her in the storm,, the Sheriff would not be bound to.”
    To this instruction the counsel for the plaintiff also excepted.
    The Jury found a verdict for the defendants, upon which judgment was entered. A motion for a new trial on the Judge’s minutes was made at Special Term, and denied, by an order, from which, as well as from the judgment, an appeal was now taken.
    
      
      Daniel Lord, for plaintiff, appellant.
    1. The Sheriff was bound, by the express terms of the statute, to keep the property in a secure place, and had a lien on it, not only for his own fees, but all necessary expenses.
    • 1. This obligation is official and statutory, and at least as great as that of a common carrier, and only subject to the same exception of inevitable accident from act of God.
    2. A carrier is not exempted simply from a loss by act of God, unless it appears that he has done his whole duty in protecting the property from its peril.
    II. The question as to the safety of the vessel from the condition of the fastenings, and the judgment of the witness thereupon, and the question of the Judge thereupon, were all objectionable, and formed a mistrial.
    I. It was a mere opinion of the witness, who had not seen the vessel nor had been present at the time of the peril# and an opinion on a subject of common knowledge, and not of science.
    2. The Judge’s question was leading.
    3. It was irrelevant, for the evidence did not show a loss from a defect of fastening.
    III. The Sheriff was bound to take more than ordinary care of this property, and if lost for want of more than * ordinary care, he is liable.
    IV. The Sheriff was liable from the want of due caution, whether in the Sheriff, deputy sheriff, captain, master or hands of the vessel.
    1. The charge Vas, if the Sheriff or his officers were without fault, the verdict should be for the defendant. This relieves the Sheriff from the negligence of the persons left with the vessel in charge of the cargo.
    2. When again more specifically requested to charge on this simple proposition, the Judge did not so charge.
    The plaintiff was entitled to such a charge as he requested. (See this case in the Court of Appeals, 21 N. Y. R., 105,106; Also this ease, 2 Duer, 59; 1 Bosw., 357.)
    
      V. The verdict was against evidence, clearly and palpably.
    
      Edwards Pierrepont, for defendant, respondent.
    I. The charge of the Court is in accordance with settled law, and quite as favorable to the plaintiff as the law or the facts would warrant. [Moore v. Westervelt, 21 N. Y. R., 103.)
    II. The case clearly shows that there is no meritorious cause of action, and to us it seems not an action in good faith by the plaintiff.
    III. The presumption of law always is, that the Sheriff, in execution of legal process, has done his duty, and negligence of the Sheriff must be proven as matter of fact before the plaintiff can recover.
    IV. The fact that there was no negligence on the part of the Sheriff has been found by the Jury on four different trials, and the evidence abundantly sustains that finding. On this trial much new and additional evidence was given on the part of the defendant.
    V. There was no negligence on the Sheriff’s part, and the verdict is clearly sustained by the evidence.
    VI. Four several Juries have concurred in the verdict that the defendant was not guilty of the neglect charged. [Ex parte Baily, 2 Cow., 479; Feeter v. Whipple, 8 Johns., 369; Fowler v. Etna Ins. Co., 7 Wend., 270.)
   By the Court—Robertson, J.

The question of the admissibility of the question put to Hallenbeek, the ship’s keeper, an expert, as to his judgment on the sufficiency of the fastenings, must be determined before examining the charge. Some degree of professional knowledge had been previously testified to by him; and also that he should judge the hawsers used were those usually employed— a large rope; and he certainly was competent to give an opinion as to their safety. It clearly was a subject of science and experience, and not of common knowledge;one of the fastenings seems to have broken; the plaintiff had a right to prove that it was sound in the first place, and that such danger was properly provided against. . The question was, therefore, properly admitted.

The substance of the objections to the charge is, that the Judge confined the degree of care to be exercised by the defendant to that which a prudent man would exercise in regard to his own property, and did not charge that the neglect of the persons on board the vessels was imputable to the defendant.

In regard to the first point, we are bound to adhere to the views expressed by this Court at General Term, when the case was formerly before it, (1 Bosw., 357,) which limited the degree of care required to that which was stated in the charge on the present trial. (Story on Bailments, § 130.) Those views were not disapproved of by the appellate Court, (Moore v. Westervelt, 21 N. Y. R., 105,) which has since and lately thrown considerable doubt upon the existence of any practical distinction between ordinary and extraordinary care in regard to bailees for hire, as in the case of common carriers, in the ease of Wells v. N. Y. Central R. R. Co., (24 N. Y. R., 181, decided at their last term,) pronouncing it “illusory and impracticable.”

The request in regard to the neglect of the master and crew does not appear to me to have been put in a form which required a compliance with it. Omitting that part of it which relates to the defendant, which it is conceded was granted, it amounted to a request to charge, that the omission by such master and crew to take the necessary means for the safety of the vessel, made the defendant responsible; that it clearly did not, if he or any other person took the proper precautions, and if not only they but the whole world omitted them, he clearly was liable. ¡Neglect is negative conduct, and the defendant’s responsibility depended on the omission by everybody to take the proper measures to insure safety, not that of any particular individuals. The plaintiff was entitled to have the Jury instructed, either that the defendant was bound to adopt such means, or that the failure to employ them by all the world made him liable; for if any one used them, he was entitled to the benefit of that use. If the object of the request was, as seems to be contended, that the defendant did not discharge his duty by leaving the vessel in the charge of the captain and crew, as held by the Court of Appeals in the case, it should have been made in terms less likely to be misunderstood. But even if negligence could be conceived to be a positive act, the charge that the defendant would be responsible, if the loss was caused by his negligence, seems to me to cover the case. The master and crew were, as held by the appellate Court, his agents under the circumstances, and he was responsible for their conduct; their negligence was his. If there was any doubt that the Jury would so understand their relation and its effect, the request should have been directed to that point in less ambiguous phraseology; because, as it stands, it is that if the neglect of such agents, as one of the alternatives, caused the loss, the defendant was responsible; and there is no pretense of any positive acts on their part to increase the danger. The defendant was responsible, if at all, for the neglect of the whole world, including himself, and not for that of any particular individuals. The third request equally falls short of the requisite exactness to reach the end proposed, if it were that now contended for; it was “that the Sheriff was “responsible for the negligence of the master and crew.” The learned Judge instructed the Jury, that if the defendant did not take the degree of care which the Judge had indicated, and the injury was caused by such negligence, the plaintiff was entitled to a verdict. How mere negligence of the agents was to make the liability of then* principal, arising from his own want of care, greater or less, I cannot discover. The learned Judge even went so far as to charge that the defendant “was bound to put on “board such men as would pump her out and heep her in a “condition to insure the safety of the cargo,” thus fully - defining his obligation.

The verdict should, therefore, not be interfered- with by reason of any improper refusals to charge.

But it is said the verdict of the Jury, even if the charge was correct, was contrary to the evidence, or the weight of it, and that the defendant utterly failed to discharge 'any obligation incumbent upon him; and that is based principally upon the ground that nothing was done by any one, to save either vessel or cargo.

The liability of the defendant, turns generally upon the .question, whether he kept the cargo, which is the subject matter of the action, “in a secure place,” within the meaning of the 215th section of the Code, as well as discharged his duty as a bailee for hire and public officer charged with the possession of the goods seized by him as Sheriff. The highest Court of this State, in passing upon a former judgment in this action, held, that the defendant was not necessarily bound to remove the cargo out of the vessel, unless it was unsafe there, (Moore v. Westervelt, 21 N. Y. R.,. 105,) but he was bound to take a certain degree of care in protecting and securing it while in his custody on board of such vessel, what that degree of care was, was not adjudicated.

Being thus bound to see that the place of deposit was in itself safe, if it floated, he was bound to see that it was properly moored, secured and fastened, against all ordinary perils of winds and waves, and if necessary, protected against any storm or gale, after it arose, by every •means within Ms reach, which a prudent man would use for the purpose, either by removing the vessel to another place, or otherwise. Complaint is made, in this case, first, of the character, condition and fastenings of the vessel itself, and its exposure to storms coming from the quarter from whence that which sunk her did; and, secondly, of the neglect .to change her position after the storm commenced. Of course, if the storm was of a kind and from a quarter, which previous experience had taught might be expected, and the position of the vessel was such as not only to expose it to such storm, but also to prevent its withdrawal after the storm had begun, the defendant would have been guilty of neglect in leaving it in that ■position. Or if the condition of the vessel, as to its lading or leaking, was such that it could not resist the force of the storm as well as if it had been lightened or pumped, or the leaks stopped, and the defendant neglected to use any proper measures to produce those results, and such neglect made her more easily a prey to the storm ;■ or if, after the commencement of the storm, he could have caused anything to be done to protect such vessel from its violence, by removing it, or increasing its fastenings, or otherwise, and did not do so, he was equally negligent. Upon these points it may therefore be necessary to examine the evidence; but the defendant would not be liable if the storm was one of a violence so unusual as not to have been reasonably expected; or if it was impossible to remove the vessel to a place where she would not be as much exposed to storms of equal violence from another quarter'; or if she was so situated as to be incapable of being withdrawn from the effects of a storm of ordinary violence from the same quarter, after it had commenced ; or if she was so kept clear by pumping as that her cargo or any leak did not increase her danger or render her unmanageable, and nothing could have been done within a reasonable time after the storm commenced, by removing the vessel out of its reach, or increasing her fastenings, to save her.

Both parties, in this case, seem to have been willing to trust the case to the Jury, upon the general charge of the Court, as to the degree of care to be exercised by the defendant; the state of affairs in which he would be bound to remove the cargo in question, or put men on board to pump the vessel out and keep her in a condition to insure its safety. There was no request for specific instructions as to the character of the storms against which provision was to be made, or the nature of such provision, or the duty of the defendant in regard to removing or protecting the vessel after the storm had begun; so that it was left entirely to the Jury’s discretion to determine, according to their uninstructed views of the defendant’s duty, whether he had performed it or not. The plaintiff, after making that experiment, cannot now, in fairness, ask, upon a critical examination of the evidence, that such verdict should be set aside, merely because the Court may take a different view of the defendant’s conduct.

It certainly cannot be denied that the agents of the defendant did not seem to have had a very clear idea that he was responsible for anything except for the safe keeping of the coal, or if he chose to make the vessel in Avhich it was, his place of deposit, was bound to do anything to protect it against winds and waves or other accidents, nor that the defendant took any additional precautions against them. But this is wholly immaterial, if nothing could have been done to save the vessel. It is true, an omission to make an attempt to do, what to an unlearned mind may seem likely to accomplish an end, may have its weight with an equally unlearned Jury; but when experts pronounce such efforts futile, we are bound to yield to their judgment. The Jury in this case must have been satisfied that nothing could have been done to save the vessel, even by an owner stimulated by the fear of loss, and therefore the reason why nothing was done was immaterial. It would be unprofitable, therefore, to enter into speculations of possibilities, when we have realities before us.

So, too, the heavy lading and leak of the vessel, if, as it would appear by the testimony, they prevented it from being safely removed to a place of shelter, or increased the peril of that removal, might be a reason why the defendant should not have left it in a place of danger; but the testimony shows that human foresight could not determine from what quarter the danger would come, and the probabilities were that it would come from a quarter against a gale from Avhich the pier was a shelter. Against the leak, which was not formidable before the gale, protecv tion was given by the use of the pumps. It is true, the defendant might have exercised greater care in taking out the excessive part of the cargo, before the storm, if he had had any reason to anticipate it, but the Jury had a right to determine that storms did not occur with such certainty, as, in view of the reasons sanctioned by the Court of Appeals for retaining the same depository, should call upon him to make the change; and the Jury has determined he did all a prudent man was likely to do in his own case.

The defendant having made out a prima facie case of destruction by overpowering and not to be expected force, it lay with the plaintiff to show that something could have been done when the attack came, to resist it, or rescue the vessel from it; the evidence in this case, certainly does not go to that extent. The Court is not at liberty to conjecture she might have been saved by going round the pier or across the slip. The Jury, with perhaps equal if not greater experience, have determined she could not, by deciding that a prudent man would not have tried it; and it would be improper for us to say, in the face of the evidence of the violence of the storm, they were wrong. The Court would not have been warranted in instructing the Jury that the defendant was bound to have made the attempt in the absence of all evidence that the expected action was feasible: what there is goes to prove it was not.

Without undertaking to say that the evidence establishes that the defendant did all that a prudent man would have done, to provide for contingencies in case anything could have been done, we merely mean to hold that there was no such overpowering evidence that anything should have been done beyond the measures taken to secure the vessel, in the first place, or after the wind commenced to increase, or that anything could have been done to save her when the storm had grown to a gale, as to warrant our setting aside the verdict for that reason.

The judgment must be affirmed, with costs.

Judgment accordingly. 
      
       On appeal to the Court of Appeals the judgment was affirmed, 25 How. Pr., 277.
     