
    (88 Hun, 509.)
    PALMER v. NEW YORK & L. C. TRANSP. CO. et al.
    (Supreme Court, General Term, Third Department.
    July 6, 1895.)
    Negligence—Evidence—Compliance with Rules of Navigation.
    In an action for personal injuries caused by the hawser of the tug C., owned by one of the defendants, striking plaintiff while on a canal boat in tow of the tug B., owned by the other defendant, it appeared that the B. overtook the C. shortly before reaching a bend, and signaled its desire to pass on the left-hand side. The C. answered the signal, and moved as near to the right-hand shore as possible, but continued at the same rate of speed. After the B. had passed the C., but before the B.’s tow had passed, the bend was reached, and the hawser of the C. was drawn against plaintiff’s boat, and slipped over the bow, and injured plaintiff. Held, that the accident resulted from the effort of the B. to pass the C. at a place where it was dangerous to make the attempt, and therefore the owner of the C. was not liable to plaintiff; Rules of Navigation, 22-24, providing that an overtaking vessel shall keep out of the way of the other vessel, and that where one of two vessels is required to keep out of the way, the other shall keep her course, except that due regard must be had to all dangers of navigation, and to any special circumstances which may exist, rendering a departure from them necessary to avoid immediate danger.
    Appeal from circuit court, Clinton county.
    Action by Edward Palmer against the New York & Lake Champlain Transportation Company and the Lake Champlain Transportation Company to recover damages for personal injuries. There was a judgment in favor of plaintiff, and the first-named defendant appeals.
    Reversed.
    For former report, see 27 N. Y. Supp. 561.
    Argued before PUTNAM, HERRICK, and FURSMAN, JJ.
    Potter & Lillie (J. Santford Potter, of counsel), for appellants.
    Shedden & Booth (L. L. Shedden, of counsel), for respondent.
   HERRICK, J.

This is an appeal by the defendant the New York & Lake Champlain Transportation Company from a judgment and order denying a motion for a new trial. At about noon on the 9th day of May, 1891, the tugboat Robert H. Cook, owned and operated by the appellant, left Whitehall, N. Y., with 17 canal boats, going north through Lake Champlain. About 15 minutes thereafter, the tugboat E. C. Baker, owned and operated by the defendant the Lake Champlain Transportation Company, left Whitehall, N. Y., with 14 canal boats in tow, bound northward to the same port as the first-mentioned tugboat. The canal boat of the plaintiff was in the second mentioned tow. About seven miles from Whitehall, there is a sharp turn in the lake known as “Maple Bend.” At that point the channel is about 150 feet wide. It turns to the east; then again to the west. Before reaching Maple Bend, there is a stretch of the lake about l-¡- miles of straight water, known as “Long Reach.” The Baker overtook the tow in charge of the Cook at the head of Long Reach, and then gave two blasts with her whistle, that being the signal that she desired to go to the left-hand side of the Cook. The Cook answered by a similar signal, which signified an answer to the request of the Baker. The Cook thereupon moved over to the right hand, and as near as possible to the shore, continuing at the same rate of speed as before. The Baker gradually passed the Cook, and when Maple Bend was reached was about 500 feet ahead of the Cook. The hawser of the Baker was from 150 feet to 175 feet long. A canal boat is about 98 feet in length. The plaintiff’s boat was in the third tier of boats in the Baker tow, and on the right-hand, or Vermont, side of said tow. Thus, while the Baker itself, at the time of turning Maple Bend, was some 500 feet ahead of the Cook, a portion of the boats it was towing were opposite the Cook and a portion of the boats in its tow. The evidence shows that the passage of two tows of boats at the same time, around the sharp turn of Maple Bend, is dangerous. In turning Maple Bend, the hawser of the Cook was drawn with great force against the plaintiff’s boat, and then slipped and flew over the bow, striking the plaintiff, and causing the injury for which this action is brought. The evidence shows that the Cook had gone as far to the east shore as it possibly could without running aground, and indicates, also, that the Baker, in endeavoring to pass the Cook and its tow of boats, in the sharp turn at Maple Bend, drew the boat of the plaintiff against the hawser connecting the Cook with its tow of boats.

The rules of the United States for steam vessels navigating waters of the United States were introduced in evidence, three of them being as follows:

Rule 22: “Every vessel overtaking another vessel shall keep out of the way of the last-named vessel.”
Rule 23: “Where, by rule 22, one of two vessels shall keep out of the way, the other shall keep her course subject to the qualifications of rule 24.”
Rule 24: “In construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering departure from them necessary in order to avoid immediate danger.”

This case has been once before tried, when a verdict was rendered against both defendants. The present appellant then appealed to this court. The Lake Champlain Transportation Company did not appeal.

Upon the former appeal this court said:

“Were it not for the testimony which was allowed to be introduced by the court in regard to the local custom on Lake Champlain, that, when one boat passes another, the latter slackens its speed, and allows the former to pass, the evidence does not establish a very clear ease of negligence against the appellant." 76 Hun, 181, 182, 27 N. Y. Supp. 561.

And it was then held that evidence of this local custom was improperly admitted upon the trial, and the judgment was reversed, and a new trial granted, which resulted in the judgment now. here for review.

Upon careful examination of the evidence in this case, I fail to find sufficient evidence of negligence on the part of the appellant to sustain the judgment. It seems to me that the accident in question resulted from the effort of the Baker to pass the Cook and its tow in a place where it is dangerous to make any such attempt. The navigation rules offered in evidence provide that every vessel overtaking another vessel shall keep out of the way of the last-named vessel, and that the last-named vessel shall keep her course subject to the qualifications of rule 24. The qualifications of rule 24 are that, in construing and obeying the previous rules, due regard must be had to the dangers of navigation, and to any special circumstances which may exist in any particular case, rendering departure from them necessary in order to avoid immediate danger. The only special circumstance in this case was that the water was somewhat narrow, and the tugboat Cook, instead of keeping her course, as provided for by rule 23, departed therefrom to the right or east side of the lake; thereby giving the Baker more room to pass upon the left, as she desired to do. The Cook went as far as possible to the east. She could go no further without running aground. There is no evidence that she was going at an undue rate of speed. There is nothing in the law requiring her to stop in order to let the Baker pass; neither was there any obligation resting upon her to do so. If, when Maple Bend was reached, she had then stopped, the testimony shows that such stoppage would have resulted in „a collision. She did not run into the plaintiff’s boat. The plaintiff’s vessel was run into her hawser by the Baker. The Cook could not avoid it, except by running'or endangering her own line of boats. It was not bound to do either. Upon the whole case, I fail to find any evidence of negligence upon the part of the appellant.

The judgment should therefore be reversed, and. a new trial granted; costs to abide the event. All concur.  