
    ROBERT P. PARROTT, Plaintiff and Respondent, v. THE KNICKERBOCKER ICE COMPANY and Another, Defendants and Appellants.
    
      [Decided December 31, 1869.]
    The rule that an injury which a plaintiff has sustained through the negligence of the defendant, was not contributed to by any act on his part, is applicable to vessels engaged in inland navigation. It is immaterial whether the negligence is slight or gross.
    And he must establish that there was due care on his part at the time of the accident.
    A sailing vessel has no right to neglect all proper precaution, and cannot throw the entire responsibility of accidents upon a steamer with which it has collided.
    If the injury could have been avoided by the exercise of ordinary care on the part of the sailing vessel, the plaintiff cannot recover.
    It is negligence to allow a sailing vessel to drift down a river in the dead hour of night, without the slightest power to control or manage her.
    It is the duty of the captain, in such a case, to anchor his vessel; his failure to do so is gross negligence.
    Before Barbour, C.J., McCunn and Fithian, JJ.
    This ease was tried before a referee. The action was brought to recover damages sustained by a collision between a sloop of the plaintiff and a propeller of the defendants, in consequence of which the plaintiff’s sloop, with her cargo, was sunk.
    The facts are fully set forth in the opinion of the court.
    The referee found in favor of the plaintiff, and defendants appealed to the General Term.
    
      Mr. Titus B. Eldridge for appellants.
    The burden of proof is on the plaintiff to show that the two essential allegations of the complaint are true : That he has suffered damage by the negligence of the defendants, and that he did not by any act of negligénce contribute to the act or damage (Butler v. Hudson R. R.R. Co., 18 N. Y. R., 248). It is immaterial whether the negligence of the plaintiff be slight or gross, for the defendants may have been guilty of gross' negligence adequate to have produced all the injury which was inflicted upon the plaintiff; yet if the plaintiff, by even slight negligence, contributed to his injury, he cannot recover (23 Con., 437).
    To enable a party to recover where the gist of the action is negligence, there must be affirmative proof on his part of due care at the very time of the accident, and it is said that neither the urgency of business, nor the calls of humanity, can be taken into account (Hyde v. Jamaica, 1 Williams, 44). Hence, in a case of collision between vessels, the burden of proof is on the plaintiff, not only to show negligence on the part of the defendants, but to prove ordinary care on his own part (Drew v. Chesapeake, 2 Douglas, 33; Wilds v. Hudson R. R.R. Co., 24 N. Y., 430; Mangan v. B. C. R.R. Co., 36 Barb., 230).
    If in any view of the evidence the court should be of the opinion that the decision of the referee upon the question of the defendants’ negligence should be affirmed, still the plaintiff cannot maintain the present action, because the persons navigating his sloop were negligent, and their negligence contributed to produce the accident.
    This is not a case of such conflict of evidence as will render the decision of the referee final. For the conflict is so light in any view of the evidence, and the preponderance is so great and so' decided in the defendants’ favor, as to render it the duty of the court to set aside the judgment within the very well-settled principle of law upon the subject. The case falls within the principle declared in Adsit v. Wilson (7 How. P. R., 64, 66), which is sanctioned and sustained by Jackson v. Steinbergh (1 Caine, 162), Conrad v. Williams (6 Hill, 444, 451), Boyd v. Colt (20 How. P. R., 384), Hartman v. Proudfit (6 Bos. 171), and Strong v. Place (33 How. P. R., 114).
    
      Mr. Oscar Smedberg for respondent.
    The referee found the following facts, which entitle the plaintiff to judgment:
    That on the 14th November, 1865, the plaintiff’s sloop was run into and sunk by a propeller belonging to the appellants, and had at the time a large cargo on board, belonging in part to the plaintiff, and in part to other parties for whom he was carrying the same in said vessel, as common carrier, for hire.
    That such running into and sinking was caused by the negligence and carelessness of the persons employed by the defendants in the management and navigation of the said steamboat, without any fault, negligence, or carelessness on the part of the persons employed by the plaintiff in the management and navigation of the said sloop Westchester.
    The referee, in addition to the general finding of negligence and carelessness on the part of the defendants, finds specifically:
    That the plaintiff’s sloop was drifting with the tide; that she had no steerage way; that the collision occurred from the fault of the defendants’ propeller in having no lookout, the pilot, in consequence, not seeing the sloop in time to keep out of her way; and that the pilot of defendants’ propeller did not back his vessel.
    Such facts having been found by the referee, this court will not review the same.
    The referee having found that the plaintiff was entitled to judgment, the amount of such judgment as fixed by him is correct.
   McCunn, J.

The testimony on the part of the plaintiff establishes the fact that the collision occurred about two o’clock on the morning of Nov. 14, 1865 ; that the night was a clear, starlight night; that there was no wind, and that for several miles just preceding the collision the sloop was allowed by the captain to drift with the current over safe anchoring ground, and where she would have been out of the beaten track of other vessels; that the defendants’ steamer at the time of the accident was heading up stream, in the usual channel, against a swift current, with a heavy tow of barges and boats in charge; that she had all her lights properly set, and that they were of such magnitude and clearness that they were seen by the crew of the sloop at the distance of miles; that there was no wind, and that the sloop’s company had to row her to get her head down stream, in order to enable her, I suppose, to drift with the current; that there were no vessels in sight except the lights of the defendants’ steamer and the lights of her tow; that there was no wind to steer by, and that she (the sloop) was heading south by east near the middle of the channel; that when the steamer got within one hundred yards of the sloop a slight breeze sprung up, but not enough to move the vessel or steer by—it only sufficed to jibe the boom over to the eastward.

Now all this evidence, as I have said before, is offered on the part of the plaintiff, thereby establishing beyond a peradventure the fact that the sloop was allowed to drift with the current for miles and miles, in the midst, nay in mid-channel, of one of the greatest inland navigable thoroiighfares in the world.

So that the first and principal question that presents itself in this ease, is whether the plaintiff, under the circumstances, is free from blame, or free enough from contributing negligence to entitle him to recover.

I think, upon a careful consideration of all the facts and circumstances of the case, that he is not.

Before the plaintiff can recover in this case, he must establish the fact that he has suffered damage by the negligence of the defendants ; and second, that he did not by any act of negligence contribute to the act or damage.

It is immaterial whether the negligence of the plaintiff be slight or gross. The rule now is, that if the plaintiff by even slight negligence contributes to his injury he cannot recover.

This was the principle laid down in Neal v. Gilbert (23 Cow., 437), Judge Sandford holding that for any thing the court can see, although the defendant’s negligence was gross, yet the plaintiff’s exercise of reasonable care would have saved him from the consequences. Precisely this ease: if this captain—I mean the captain of the sloop—had exercised ordinary care, this accident would not have happened. Again, Baron Alderson holds, in Blyth v. Bingham (36 Eng. Law and Equity), that negligence consists in either omitting to do what a reasonable man would do, or the doing something that a reasonable man would not do, in either case causing mischief to a third person.

To enable a party to recover for negligence, there must be clear proof on his part of due care at the time of the accident happening. Hence in such a case as this the burden of proof is with the plaintiff, not only to show negligence on the part of the defendants, but to establish beyond a doubt, in the mind of the court, ordinary care upon his own part. This was the clear and reasonable doctrine laid down in the cases of Drew v. The Chesapeake (2 Douglass), and Burrell v. Williamson (1 McLean).

A sailing vessel has no right to neglect the proper caution, and throw the entire responsibility of accidents upon steamers. Vessels propelled with canvas, must exercise proper care and caution as well as vessels driven by steam; and this principle was strictly applied in the case of Ward v. Armstrong (11 Illinois).

In all such cases as the one under discussion, the test of defendants’ liability is to be found in a great measure by the inquiry, Could the injury have been avoided by the exercise of ordinary care on the part of plaintiff ?

If it could, he must then bear the loss himself.

This simple and plain rule of law was discussed and relied upon in the case of Wild v. the Hudson R. R.R. Co. (24 N. Y.) and in the case of Mangan v. The Brooklyn City R.R. (36 Barb., 230).

These and many other cases in the books establish the doctrine that no matter how negligent a defendant may be, yet, if a plaintiff unduly expose himself to injury he cannot recover, and the doctrine must apply to navigable rivers, or wherever the remedy afforded by the common law is invoked, whether the accident arose on land or water. How, applying this rule in this case, could the accident have been avoided by ordinary care on the part of the plaintiff ? If it could, he must fail.

I think it could. It was negligence to allow the sloop to drift down a river thickly covered with all kinds of vessels, in the dead hour of night, without the slightest power to control or manage her, because it is evident to the commonest mind that a vessel drifting with the current has no steerage power; that is to say, it is motion through the water that gives power to the rudder by friction thereon, and then the power of the rudder guides the ship on her course. Without this movement through the water the vessel is entirely helpless.

The rudder of a ship is to a vessel what the reins are to a horse in a vehicle—the lines guide the horse, and the rudder passing through the current guides the ship. If the reins of the horse are dropped upon his neck, and he be allowed to move at random in a great thoroughfare, surely, if injury is done him, his master cannot recover; so, if the master of a ship allow his vessel to drift with the current without any steerage way, and an accident happen, surely this rule ought to be as strictly applied as in the case of the horse.

The steamer had a large number of other vessels in charge and attached to her ; she had to guide them as well as herself up a swift and turbulent stream; and long before the collision took place, if the captain of the sloop had exercised the most ordinary kind of care, seeing the manner his ship was drifting, and knowing her to be perfectly helpless and unmanageable without steerage way, and seeing the steamer’s lights approaching miles off, he should have selected a safe anchorage and brought his vessel to. His not doing so was gross negligence. Instead of the captain of the sloop exercising proper diligence to keep his ship out of harm’s way, he says that when he first saw the steamer’s lights, and the lights of her tow, he did not pay much attention to them, that he thought it was a large steamer coming up the river. This was negligence.

He should have scanned the lights on their approach, found out the steamer’s course and the true condition of things, and, seeing it was a steamer with a great responsibility attached, should have kept out of the way. Had the sloop been at anchor, she would have secured herself from the possibility of danger, as there is no evidence that the Camelia changed her course; and it would be against all principle, and against authority, to allow a vessel rendered helpless from any reason to drift down a thickly navigated river for hours upon a strong ebb tide (when she can anchor any moment), and in such a manner, and, in case of loss, claim damage.

The law requires from those in charge of vessels upon the water constant care and vigilance.

Had the sloop been at anchor with fixed lights up, I have no doubt the steamer would have approached her with caution, and,, seeing from her lights that she was at anchor, would have avoided her. It will be seen that I have been viewing the question of negligence on the part of plaintiff in this case from a standpoint on the plaintiff’s side—that is to say, I have examined the question of negligence thus far on plaintiff’s own proof. How let us see if the proof on the part of defendants shows any negligence on the part of plaintiff. The testimony of the captain of the sloop is that the sloop was drifting down the stream without a breeze, and the proof of the pilot or captain of the steamer is directly contrary to this ; for he says that she (the sloop) was going about eight miles an hour down the stream under a good breeze, and that if the sloop had, kept her course all wordd have been well; bxat that when within about fifty yards of the steamer she luffed right across the steamer’s bow, and in consequence thereof the Camelia struck her and she was sunk. All the defendants’ witnesses tell the same story, and if they tell the truth then gross negligence was committed by the captain of the sloop in luffing across the steamer’s bow, and in consequence thereof plaintiff cannot recover.

How, I think I have conclusively shown that, according to the testimony of both plaintiff and defendants in this case, gross negligence was committed by the captain of the sloop; one set. of witnesses swearing that the sloop was drifting with the stream and was unmanageable—consequently, letting her do so was negligence; the other set swearing that she had a good wind, that she suddenly luffed across the bow of the steamer, when her course should have been as she was standing before she luffed.

The evidence of the plaintiff’s witnesses as to the sloop’s drifting is the most reliable, and that evidence shows gross negligence on the part of the plaintiff, and he cannot recover.

I have only examined the leading points in this case, because I am convinced from the evidence that negligence has been committed by plaintiff in allowing his vessel to drift for miles and for hours in this great highway, wherein, large numbers of vessels of all kinds, and at all hours, are engaged in the carrying trade of the country; and if I am correct in my views of the law in this case, it must follow, as a matter of course, that plaintiff is without a remedy.

Judgment is reversed and new trial granted, with costs to abide the event.

Fithian J.

(concurring). After a re-examination of the evidence in this case, I see no reason to change the opinion formed when the case was first before us. The course of the river at the place of collision was nearly north and south. The steam propeller was bound up the river and the sloop down. At the point of collision the steamer was headed on a course northerly, or substantially the same as the course of the river. The sloop received the blow of the steamer at or near her larboard fore chains, thus showing, what is not disputed, that, at the time of contact, the sloop was heading to the westward and crosswise of the river, on a course nearly if not quite at right angles with the course of the steamer. There is a direct conflict of evidence as to how and from what causes the sloop came to be in that position at the time of the collision. The testimony of the persons in charge of the steamer is, that shortly before the collision and when the two vessels respectively “ hove in sight ” of each other, the sloop was sailing down the river, with a seven or eight knot breeze, in a position in the river considerably to the eastward or starboard side of the steamer, on a course which, if kept, would have caused the vessels to have passed each other on a starboard helm, each on the starboard side of the other. It was claimed on behalf of the steamer that under such circumstances it was the duty of the sailing vessel to have kept her course and permitted the steamer to keep out of the way in any manner she saw fit. But instead of so doing, the witnesses say, that when the sloop was in close proximity to the steamer, her pilot wrongfully and improperly, under the circumstances, attempted to observe the general law of the road and river, by each vessel keeping to the right, put his helm hard to port, sheered sharp to the starboard, thus throwing the sloop directly athwart the bows of the steamer, when it was too late for the latter to take any precaution to prevent the collision. This, if true, is conceded by all parties to be negligence on the part of the master of the sloop. But, on the other hand, the navigators of the sailing vessel swore, that at the time of the collision she was wholly without wind or steerage way, and was floating helplessly with the tide, and had been so floating without wind or steerage way for some two hours or more, and for some six miles or more of distance, the tide then running down the river, or ebb, at about two miles an hour. The referee finds this to be the true state of the case, and holds the sailing vessel to be without fault or negligence in the premises, and charges the steamer with the whole damage. In this I think the referee erred, without attempting to consider the question of whether the referee’s findings were or not in accordance with the evidence. But, assuming the facts in regard to the sailing vessel to be as he finds them, I am still of opinion there was fault in the conduct of the managers of the sailing vessel. It seems to me to be not only careless and negligent, but dangerous, for the master of a vessel to set his craft adrift, with all sails set, in the nighttime, in a narrow estuary, where numerous vessels are constantly passing and repassing, and allow such craft to float with the tide for hours, helpless, upon the water, without wind or steerage way. Such a situation is directly calculated to deceive and mislead approaching vessels, especially steamers. A steam vessel in motion at even a slow speed always has with her an apparent breeze. She is navigating in the night a narrow river, where it is impossible to pass other vessels without coming into some degree of close proximity. A “ wide berth ” cannot be given. The pilot of the steamer sees ahead of Mm, M the shadows of the mght, a sailing vessel with all sails set, her sailing lights all hoisted, heading in a certain direction, and with every thing about her to indicate that she was under way ” and obedient to her helm, that she had a course and could keep it. The steamer acts in accordance with these indications, when suddenly, and too late for a remedy, the pilot of the steamer discovers that this sailing vessel is a helpless hulk, floating with the current, and approaching him in a direction entirely different from that indicated by her appearance and points of headway. It cannot be that such conduct in the managers of sailing vessels can meet the approval of the majority of men of ordinary care and prudence, in the management of their own affairs (for that is the test of negligence). In my opinion it is the duty of the manager of a sailing vessel who finds himself thus situated in the night-time, in a narrow stream liable to be constantly crowded with passing steam-vessels, either to anchor, or, if he cannot conveniently do that, to lower some of his sails and hoist his anchor lights, or do something to indicate to approaching vessels not depending upon the wind as a propelling force, that such sailing vessel is without control and unmanageable. I am not unmindful of the rule that, as between sailing vessels and steamers, the former shall keep their course and the latter keep out of the way. But that very rule implies that the sailing vessel has a course and can keep it. Under these circumstances I cannot hold the sailing vessel free from fault in contributing to the injury, in which case it is well settled and not disputed that the plaintiff cannot recover in an action at law.

The judgment must be reversed, order of reference vacated, and new trial granted.

Barbour, C.J.

(dissenting). There can be no doubt that the negligence of the defendants, in omitting to place a proper lookout upon the propeller, was the proximate cause of the collision. They are, therefore, chargeable in this action with the loss sustained by the plaintiff, unless the evidence produced upon the trial was sufficient to prove that there was some negligence or misconduct on the part of the persons in control of the sloop, which contributed to the accident.

The referee has not included in his findings all the facts, in detail, upon which he based his conclusion that the accident was caused by the negligence of the defendants, without any contributing negligence or fault on the part of the plaintiff. The case shows, however, that testimony was given upon the trial, which was sufficient, if credited, to establish the following facts: The plaintiff’s sloop left Cold Spring, on her voyage down the river, at 2 f.m., running with a light wind on an ebb tide, and was about three hours in reaching Eoay Hook, a distance of ten miles, where, she met the flood tide, and thereupon came to anchor. At about 11 p.m., the tide having then changed, she again started upon her voyage, running with the ebb. Soon after leaving Eoay Hook she caught a good breeze, which lasted until she had run about four miles, from whence to the place of collision, being about six miles, the wind was light and inconstant, but ranging, when felt at all, from abeam to astern; and thus, with the help of the tide, she made about three miles an hour. Just previous to and at the time of the collision, the wind had so died away that she had no motion through the water, or, if any, not enough to enable her to mind her helm, although her sails were fully hoisted; but she was drifting down with the tide, at the rate of some two miles an hour. It appears from the written opinion and findings of the referee, not only that he considered those facts to be established by the testimony, but that there was no evidence credited by him which proved any contributing negligence on the part of the sloop, except such, if any, as might legitimately be inferred from the fact that she was becalmed, and drifting with the tide at the time the collision took place, instead of being anchored.

The defendants’ counsel claims that the danger of collision with other vessels navigating the river was greatly increased by permitting the sloop thus to drift with the tide; and holds that it was the duty of the master to cast anchor as soon as he found there was not sufficient wind to give her steerage-way, and that it was negligence on his part not to do so.

Although, for some two hours prior to the accident, the wind had been light and baffling, and had so died away, immediately preceding the occurrence, that the sloop had but little, if any, motion through the water, yet the master had a perfect legal right to avail himself of the movement of the tide for the purpose of propulsion upon his voyage, precisely as a raft or flatboat might have done. Oases may be supposed, it is true, in which it would be gross negligence on the part of abecalmed sailing vessel thus to float with the current; such, for instance, as its near approach towards another vessel lying at anchor in the line of its progress in so drifting. In such a case, it would, undoubtedly, be the duty of the master of a vessel thus floating with the tidal current, and having no wind, to drop his anchor in time to avoid a collision. But the question presented here is quite a different one. Bor, although the receding tide, at the time of the collision, created a current in the river of about two miles an hour, the condition and position of the two vessels in relation to each other and to the water- upon which they rested, were just the same as they would have been had such vessels been placed, under the same circumstances, in the Gulf Stream of the Atlantic^ or upon water having no current whatever. As contrasted with the shore, to be sure, the sloop was floating down at the rate of two miles an hour; but, so too, was the propeller; or, rather, to that extent was she retarded by the current in her voyage from harbor to harbor, although she was making, through the water, four miles per hour. With the same rate of speed, the propeller would, in either instance, have been approaching the sloop at the rate of four miles an hour over the water, and, in each case, the sloop would be, relatively, stationary upon the water. I am, therefore, unable to see any reason for supposing that the hazard of a collision with a vessel in motion was increased at all because of the current, beyond what it would have been had both vessels occupied like positions upon dead water. Nor can I conceive that the danger of a collision with this propeller would have been diminished, had the master of the sloop brought her to an anchor at any time after the former first hove in sight; nor, indeed, how such hazard could have been lessened by any thing that it was in Ms power to do.

Assuming, however, for a moment, that the risk of a collision with the approaching propeller would have been decreased had the master of the sloop anchored her, still it by no means follows that his. failure to anchor was negligence for which the plaintiff is chargeable in this action. It was not his duty to stop a voyage which was progressing at the rate of two or three miles an hour, by bringing his sloop to an anchor, merely because the hazard of a collision might be diminished thereby. But, on the contrary, it was not only his right, but a duty which he owed to his consignors and owner, to make the voyage by the use of every seaman-like means in his power; subject, however, to the condition that in doing so he should exercise the skill and caution of a prudent and competent master. The mere fact that the sloop was becalmed, and drifting with the current at the time the accident occurred, was not sufficient, therefore, to establish negligence on the part of her owner, even though the risk of collision may have been greater than it would have been had the sloop been at anchor. To establish negligence on the part of the persons having her in charge, it was essential that the evidence should show some act or omission by them, which careful, competent navigators would not have done or omitted under the same circumstances.

I am of the opinion that the judgment should be affirmed, with costs.  