
    NEW YORK HARBOR TOWBOAT CO. v. NEW YORK, L. E. & W. RY. CO.
    (Supreme Court, General Term, First Department.
    February 16, 1894.)
    Í. Collision—Right to Rely on Signals.
    Rule of navigation No. 21, requiring every steam vessel, when approaching another vessel so as to involve collision, to slacken her speed, or, if necessary, to stop and reverse, does not apply where a vessel has signaled her intention to another vessel, and the other vessel has signaled back her assent.
    2. Same—Instructions as to Rules of Navigation.
    In an action for collision it is not error to instruct the jury as to rules of navigation which apply to the conduct of vessels approaching each other head on, or nearly so, where there was a dispute as to the relative positions of the vessels, and there was evidence from which the jury might have found that the vessels were head on, or nearly so.
    3. Same—Degree of Proof.
    An instruction in an action for collision that, if there was no lookout on plaintiff’s vessel, plaintiff cannot recover unless the jury “believe that the evidence conclusively establishes that such absence made no difference,” is properly refused, because it requires conclusive proof, which is not the rule in any civil case.
    Appeal from circuit court, New York county.
    
      Action by the New York Harbor Towboat Company against the New York, Lake Erie & Western Railway Company to recover for • damages to a steamboat occasioned by a collision with defendant’s ferryboat. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    C. B. Adams, for appellant.
    James M. Gifford, for respondent.
   VAN BRUNT, P. J.

This action was brought to recover damages occurring to a steamboat, the J. G. Emmons, of which the plaintiff was the owner, and which was in collision with the ferryboat Pavonia, belonging to the defendant. It appeared from the evidence that on the morning of the 27th of October, 1884, the Emmons started from a pier in the North river, at the foot of King street, quite a distance above the place of collision, for Castle Garden. She proceeded down the river about 300 feet from the head of the docks. When she reached Harrison street, her engineer, having found that she needed water, sent word to the master that there was a hydrant at Harrison street, where he could get it. The boat was turned off shore to go into Harrison street, her wheel being ported, and she going to the right. There is some dispute in the testimony as to how far down the river the Emmons went in turning to get back to Harrison street. The testimony upon the part of the plaintiff was to the effect that she commenced to turn abreast of the Harrison street pier, kept on the swing, and went down the river far enough to open the Erie freight slip between piers 20 and 21; but that she did not go below or to the slip of the passenger ferry, which was the opening between the piers next below. On the part of the defendant evidence was offered tending to show that the pilot of the Pavonia saw the Emmons between Harrison and Jay streets, (Jay street being the street below Harrison,) proceeding down the river, and that she had gotten so far down that her stern was between the piers of the slip above the ferry; and that the pilot, supposing that she was going on, paid no further attention to her. The next thing he saw was that the wheel of the Emmons was put hard a-port, and she came right around; and he swore that even at that time there was nothing to indicate that the Emmons was going to attempt to turn up the river again, and cross his bow; and that the first intimation he had that the Emmons intended to cross his bow was that a whistle was blown, and he immediately signaled the engineer to reverse his engine, and back the boat; at the same time he gave one whistle; and that his boat, being backed, and had almost lost her way before she came in collision with the Emmons, and, after hearing the whistle, his wheel ran amidships, and stayed there until the collision. On the other hand, upon the part of the plaintiff the evidence was that the Emmons never got below the opening between the piers above the ferry, and that she rounded to. The Pavonia was coining diagonally across the river from Pavonia ferry, and, after the Emmons had made three-quarters of the swing to the northward, she blew one whistle to the Pavonia, indicating that she intended to go to the right. At this time the Emmons was about 400 feet from the shore, and the Pavonia 800 or 1,000 feet away from the Emmons, on her way to her ferry. Not getting an answer to this signal, but seeing that the Pavonia kept on her course, she blew another similar blast, when she was about 500 feet away. The Pavonia then answered distinctly with one whistle. The Emmons’ helm was still hard a-port. After this whistle the Pavonia’s wheel was put to starboard, thus throwing the Pavonia directly towards the Emmons. The Emmons at the time was going at full speed, and after the second whistle a bell was rung to the engineer for extra speed. The Pavonia’s engine was stopped at the time of the collision, and the Pavonia’s port bow struck the Emmons’ port wheel.

Upon this state of the evidence it is claimed upon this appeal that the court erred in not dismissing the complaint at the close of the plaintiff’s testimony upon the ground that when the Emmons failed to get an answer to her first whistle she should have stopped, and reversed at once; attention being called to the twenty-first rule of navigation, which was in force at the time, and which provided that every steam vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. In the presentation of this question it seems to us that the learned counsel for the appellant does not give the proper import to the answering by the Pavonia of the whistle heard from the Emmons. It is claimed—and that seems to be the foundation of most of the arguments presented here—that all that the answering by the Pavonia meant was: “All right. I hear your whistle. I will do the best I can to aid your maneuver.” We do not understand such to be the intimation conveyed by the Pavonia to the Emmons by its answering whistle. It was an indication as to how and in what way the Pavonia was going to aid the maneuver of the Emmons getting around in safety in view of the advance of the Pavonia. This indication was that the pilot of the Pavonia would port his wheel, throwing his boat to the right, and it was this maneuver the pilot of the Emmons had a right to rely on the Pavonia doing. But, instead of this, there was evidence that the pilot of the Pavonia put his helm to starboard, directly throwing the Pavonia into the Emmons. At best, the evidence upon the part of the defendant is that the helm was amidships, and nothing was done to change her course. Such being the condition of the evidence, the jury had a right to determine as to whether this failure to handle his boat properly upon the part of the pilot of the Pavonia was not the cause of the accident, and, if this had been done, no collision would have occurred. Under such circumstances the rule which has been invoked has no application.

It is further claimed as a ground for the dismissal of the complaint that the Emmons was proceeding in violation of common prudence and of a legal obligation to keep away from the ferry slips. There was no evidence in this case tending to show that that had anything to do with the collision. The Emmons was out in the stream, several hundred feet from the head of the piers. She was not interfered with by a boat coming out of the slip which ■could not see her, but the collision occurred with a boat which had the Emmons in full sight during all the time in which this swinging of the boat took place. Therefore this point urged upon the part of the appellant does not seem to be at all applicable.

The learned court charged the jury' that—

“it was the tug’s duty to signal her intention by a single blast of her whistle before she attempted to cross the ferry boat’s bow the second time; and, if she did not get a single, blast of the ferry boat’s whistle in reply in time to accomplish the maneuver in safety, it was her duty to check her speed, and reduce it down to steerage-way; and, if you believe she did not do so, the verdict must be for the defendant.”

—And it is urged that the verdict is contrary to this charge. It is true that the Emmons did not get a single blast from the Pa-vonia in reply to her first whistle, nor did she reduce her speed, and that a collision occurred. But the jury had a right to find that the collision was not the result of any of these circumstances. Upon her giving the second blast she got a reply indicating a certain course of conduct upon the part of the ferry boat, which they may have found was not taken, and that that was the cause of the collision.

.It is further urged that the court erred in charging inspectors’ rule 1 and navigation rule 18 as applicable to the case, which rules apply to the conduct of vessels approaching each other head on, or nearly so. The court charged what the law was under these circumstances, and left it to the jury to determine as to whether these rules were applicable in view of the condition of the vessels, there being a dispute in regard to their relative positions, and evidence from which the jury might find that at the time of the whistle the vessels were head on, or nearly so. It is true that the Emmons was swinging all the time, and that she had swung past the line of “head on” was shown by the manner of the collision. But it cannot be said that simply because her position was changing in consequence of her helm being hard a-port she had no right to give a signal, if the condition of affairs was such as called for the signal- at the time it was given. The Emmons had her helm hard a-port. Her pilot knew that under the circumstances the pilot of the Pavonia, upon hearing the whistle and giving the reply, ought to put his helm hard a-port; and the jury had a right to find that, if he had followed that course, the collision would not have occurred.

It is further urged upon the part of the appellant that the court erred, in refusing to charge certain propositions of law as requested by the defendant, but it will be seen upon an examination of these requests that numerous propositions were involved therein which it would have been improper to have presented to the jury.

The court was asked to charge the jury that—

“No excuse is permitted for the failure of a vessel to have a lookout, and the absence of one is evidence of fault. The only way the owners of such a vessel can escape from the legal liability1 for a collision with another vessel in such a case is to show that the presence of such a lookout, vigilantly_ attending to his duties, would not have enabled the vessel to avoid the collision. Every doubt as to the performance of the duty and the effect of the nonperformance should be resolved against the owners of the vessel without a competent lookout, until they vindicate themselves by testimony conclusive to the effect that absence of a lookout made no difference in the result. Therefore, unless you believe that the evidence conclusively establishes that such absence made no difference, your verdict must be for the defendant.”

Here rules of law are invoked which do not obtain. Every doubt is not required to be resolved in favor of either of the parties to a civil action, nor is it necessary to establish any proposition by conclusive testimony. And, furthermore, the court had charged that it was the duty of the Emmons to have a competent lookout, and that the rule was that lookouts must be persons of suitable experience, properly stationed on the vessel, and actively and vigilantly employed in the performance of their duty. But there is no rule which requires that a person may not be engaged as a lookout who at other times may have other duties to perform on the vessel; and the jury were instructed that a failure upon the part of the plaintiff to have some person acting as lookout would be some evidence of negligence, but that the evidence in the case was that there were two persons in the pilot house of the Emmons acting as lookout, and that they saw the Pavonia both before and after the Emmons attempted to go about; and he left it to the jury to say whether or not there was a competent lookout, and whether or not the absence of a lookout contributed to the accident. The proposition submitted upon the part of the appellant went far beyond anything which any rule of law could possibly sanction in reference to the conclusiveness of evidence. The court, having already charged the jury as to the lookout, was entirely correct in refusing so erroneous a proposition as that which was submitted. Even if, as claimed by the appellant, the charge left too much to the jury, and did not instruct them with sufficient particularity, the appellant’s proposition gave an absolutely erroneous rule for the guidance of the jury, and in no way tended to call the attention of the court to any omission upon its part if any such existed.

The next request which it is claimed was error upon the part of the court to refuse was as follows:

“The rules of navigation require that the vessel which has the other on her own starboard (right) hand shall keep out of the way of the other. In this case, having passed the course of the ferry boat in conformity with such rule, it was the duty of the tug to keep her course, and not attempt to cross the ferry boat’s bow again, unless there was ample room for her to do so without danger of collision. Even the ferry boat’s consent to an improper maneuver would not relieve the tug of the fault of attempting it when a disastrous result ensued, Therefore, if you believe there was not sufficient room for the tug to cross the bow of the ferry boat again, the tug was guilty of fault, and the verdict must be for the defendant.”

In this proposition are assumptions which are also contained in the statement of the facts by the counsel for the appellant which have not the slightest particle of evidence to sustain them. They are that the Emmons, before she commenced to turn, had passed the course of the ferry boat, and had once crossed the boat’s bows; when the evidence upon the part of the plaintiff was that she had not reached, and never did reach, the ferry slip; and the most that can be said of the evidence upon the part of the defendant is that her stern had gotten to the pier of the ferry slip, but that she did not cross the course of the ferry boat, nor did she cross her bows; so that when she attempted to turn it was not an attempt to cross the Pavonia’s bows again.

Without proceeding to analyze the other requests in detail, it is sufficient to say that they are all affected by the same class of error, or they assume the presentation to the jury of other propositions which had been refused. Upon an examination of the whole record, we see no reason for disturbing the conclusion reached by the jury. There was a conflict of evidence as to the position of these boats, and as to what was done as they were approaching each other, and the jury were justified, if the version of the conduct of those in charge of the Pavonia was as described by the plaintiff’s witnesses, that the collision was caused by the management of that boat, and not by any fault of the Emmons.' The judgment and order should be affirmed, with costs. ■ All concur.  