
    Martin Wagner, Appellant, v. The Buffalo and Rochester Transit Company, Respondent.
    
      Collision between canal boats while being towed on the Kh'ie canal—signal to pass to the left—when improper it need not be complied with—request to charge matter already eha/rged,.
    
    In an action brought to recover damages for an injury to the plaintiffs canal boat it appeared that the defendant’s steamer Kirk was towing the canal boat, westerly along the Brie canal when a fleet towed by the steamer Alpha was' seen approaching from the west; that when the two steamboats were about sixty rods apart, one of them, but which one was a matter in dispute, sounded two blasts with its whistle, indicating that it would pass to the left, and the other answered with the same number of blasts, indicating that it understood the meaning of the signals; that when the Kirk was from 300 to 500 feet from the Alpha it changed its course to the left, but that the plaintiffs canal boat for some reason failed to follow that course and Was struck by one of the boats towed by the Alpha and was injured.
    The plaintiff contended that the Kirk, on meeting the Alpha, negligently (because a strong wind Was blowing, which prevented the plaintiff’s boat from following that course) attempted to pass to the left instead of turning to the right, in accordance with section 169 of the Canal Law (Laws of 1894, chap. 338), which provides that all boats meeting each other on a canal shall turn to the right. It appeared, however, that section 11 of the General Navigation Law (Laws of 1867, chap. 592) provides that “when two steamboats are meeting, end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard so that each may pass on the port side of the other,” and that “ when two steamboats are approaching each other, and if the course of such steamboats is so far on the starboard side of each as not to be considered by the pilots as meeting end on, or nearly so, or if the steamboats are approaching each other in such manner that passing to the right as in rule one is deemed unsafe by the pilot of either steamboat, the pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other steamboat shall answer promptly by two blasts of his steam whistle, and they shall pass to the left (on the starboard) side óf each other,” and that “ in construing these provisions, due regard must be had to all the dangers of navigation and to any special circumstances-which may exist, rendering a departure therefrom necessary in order to avoid immediate danger.”
    
      Held, that the court properly instructed the jury that if they found that the pilot of the Kirk was the one who gave the signal to pass to the left, and that he gave the same at a time when, under all the circumstances, prudence required that he should keep to the right, they were at liberty to find the defendant guilty, of negligence and responsible for the injury which followed, but that' “If the pilot of the Alpha, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided and gave the t signals, it was the duty of the pilot of the Kirk to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond and pass to the left. If you find that there was not such imminent danger of collision, as justified the pilot of the Kirk in not responding to the signal, it was his duty to- pass to the left. It will be for you to say . whether, under those circumstances, he could have prevented collision of the canal-boat and the steel fleet by- the use of reasonable care.”
    A judge presiding at a jury trial is not bound to charge, at the request of counsel, a proposition which he. has already covered in his charge in slightly different language.
    Laughmn, J., dissented.
    Appeal by the plaintiff, Martin Wagner, from a judgment of the Supreme Court in favor of the defendant, entered. in the office of the clerk of the county of' Monroe on the 12th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1900, denying the plaintiff’s motion for a new trial, made upon the minutes.
    The defendant is a domestic corporation engaged in the business of operating steamboats and towing boats on the Erie canal.
    The plaintiff is the owner of a canal boat named the John Anson, which the defendant had agreed' to tow from Rochester to Buffalo free of charge, and to pay the plaintiff the sum of ten dollars in cáse any freight was found between these two points for .the defendant to carry. Pursuant to this agreement the plaintiff’s boat was taken in tów by the defendant’s steamer the W. B. Ki/rh on the 24tli day of October, 1899, and the two boats reached the village of Brock-port at about midnight, where they remained until about five o’clock the next morning, when they proceeded on their way to Buffalo. The John Anson was in charge of the plaintiff and another man in his employ by the name of Henry Pfeiffer, and it was attached to the steamer by a tow line which the plaintiff claimed was 140 feet in length. When about a mile west of Brockport, boats were seen approaching from the west. They constituted what was termed the “steel fleet” and consisted of the steamer Alpha, a boat pushed by the Alpha and four boats in tow, all of which were heavily loaded. When the two steamboats were about sixty rods apart, one of them, but which one is a matter involved in dispute, sounded two blasts with its whistle, which indicated that it would pass to the left, and the other steamer answered with the same number of blasts, which indicated that it understood the meaning of the signal. When the steamer Kirk was from 300 to 500 feet from thé steel fleet it changed its course to the left, but the plaintiff’s boat for some reason failed to follow that course, in consequence of which it collided with the head tow boat of the steel fleet and received the injuries of which the plaintiff complains.
    The plaintiff’s evidence tended to show that when the signals were given there was a strong wind blowing from the southwest which kept his boat on the north side of the canal and prevented it from changing its course. The defendant’s witnesses, upon the other hand, testified that the wind was light and not of sufficient force to interfere with the course of the plaintiff’s boat, but that the steersman of that boat made no effort to follow the Kirk, and that there was nothing whatever to prevent his crossing to the left had the effort been made.
    
      Heman W. Morris, for the appellant.
    
      John D. Burns, for the respondent.
   Adams, P. J.:

The plaintiff in his complaint seeks to recover damages of the defendant by reason of the negligence of the latter’s agents and employees who were in charge of the steamer Kirk, the allegation being that the defendant’s boat, on meeting the steel fleet, negligently attempted to pass to the left, whereas it should have turned to the right, in accordance with the provision of section 169 of the Canal Law (Chap. 338, Laws of 1894), which required that “ the master of a float (which includes every boat, vessel, raft or floating thing navigated on the canals) meeting another float, shall turn to the right so as to be wholly on the right side of the center of the canal.”

It appears, however, that this requirement was subsequently quite materially modified by the General Navigation Law, which, provides, among other things, that when two steamboats are meeting, end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard so that each may pass on the port side of the other,” and that when two steamboats are approaching each, other, and if the course of such steamboats is so far on the starboard side of each as not to be considered by the pilots as meeting end on, or nearly so, or if the steamboats are approaching each other in such, manner that passing to the right as in rule one is deemed unsafe , by the pilot of either steamboat, the- pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other steamboat shall answer promptly by two blasts, of his steam whistle, and they shall pass to the left (on the starboard) side of each other.” (Laws of 1897, chap, 592, § 11, subds. 1, 9.)

It is further provided by subdivision 14 of the same section that “ in construing these provisions, due regard must be had to all the dangers of navigation and to .any special circumstances which may exist, rendering a departure therefrom necessary in order to avoid immediate danger,”

It seems plain, therefore, that if the steamer Alpha was the first to give the signal mentioned in subdivision 9, it became the imperative duty of the defendant’s servants in charge of the Kwh to change the course of that boat to the left, unless existing circumstances at the time were such as to fairly warrant the officer in command of that steamer in regarding a departure from the rule necessary in order to avoid immediate danger.

This obviously was the theory upon which the case was tried and submitted to the jury; but it was contended upon the part of the plaintiff that the attempted change of course was in consequence of a signal given by the steamer Kwh, and that such attempt, under the circumstances, was negligence, for which the defendant was liable.-

As has already been stated, this contention was controverted by the defendant and considerable evidence was given which tended to show that the signal came from the steamer Alpha, and the question of fact thus raised was submitted to the jury upon a charge which was concededly clear and impartial, and as to which no exception was taken by the plaintiff’s counsel. But at the conclusion of the charge the court was asked by the defendant’s counsel to instruct the jury that, “If the pilot of the Alpha gave two short and distinct blasts on his steam whistle first, it was the duty of the pilot of the Kvrk to answer promptly by two blasts of his steam whistle, and that then the two steamers were required to pass to the left side of each other and the plaintiff was not entitled to recover.”

To this request the court replied: “ That is so, unless while passing to the left the defendant’s employees were negligent and could have prevented the accident by the exercise of reasonable care.”

No exception was taken by the plaintiff’s counsel to this instruction, but subsequently he asked the court to charge: “ That in case the jury reached the conclusion that the Alpha signaled to pass to the left first, then the defendant, for the protection of plaintiff’s boat, was bound to exercise proper care and diligence in the management of its own boat, whether such care required an observance of or a departure from the general rules of navigation, and the defendant was not bound at all hazards to comply with signals from the Alpha to pass to the left; and that if under all the circumstances reasonable care and prudence for the safety of plaintiff’s boat dictated that it was safest and best to disregard the sig^ nal of the Alpha, it then became its duty to notify the officers on board the approaching steamer that the Kirh, with the plaintiff’s boat in tow, could not without risk attempt to pass to the left, but that it would retain its position along the right side of the canal and pass to the right of the approaching boats.”

In response to this request the court stated that it declined to vary its charge; whereupon the plaintiff’s counsel requested the court to charge: “ That the law does not require a boat, that has been signaled to pass either to the right or to the left of an approaching boat, to obey such signal, when to do so is to endanger the boat so signaled, or other boats which it may have in tow.” And to this request the learned trial court made substantially the same reply.

To these two refusals the plaintiff’s counsel duly excepted, and the exceptions thus taken raise the principal question relied upon for a reversal of the judgment and order appealed from.

In the body of his charge the learned court, after having instructed the jury that if they should find from the evidence that the pilot of the Kirk was the one who gave the signal to pass to the left, and that he gave the same at a time when, under all the circumstances, prudence required that he should keep to the right, they were at liberty to find the defendant guilty of negligence and responsible for the injury which followed; but that upon the other hand, “ If the pilot of the AVpTia, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided and gave the signals, it was the duty of the pilot of the Kirk to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond and pass to the left. If you find that there was not such imminent danger of collision as justified the pilot of the Kirk in not responding to the signal, it was his duty to pass to the left. It will be for you to say whether, under those circumstances he. could have prevented collision of the canal boat and the steel fleet by the use of reasonable-care.”

We think this statement of the law governing a case of this character was not only correct, but that it was virtually what the plaintiff’s • counsel sought to have covered by his two requests above-referred to ; and if so, then the learned trial court was not bound,, upon the insistance of counsel, to again charge the same rule of law,, although ' the request so to do was clothed in slightly different language. (Rexter v. Starin, 73 N. Y. 601; Quinn v. O’Keeffe, App. Div. 68.)

Where the court has charged sufficiently as to the duty of a person in a particular situation, counsel is not entitled to have further requests charged, the substance of which has been covered ' by the charge already made. This rule is one to which the. courts have steadily adhered, and it is one which we think is especially applicable to this case, inasmuch as no exception was taken to either the main body of the charge or to such supplementary instructions as were given at the request of the defendant’s counsel.

We conclude, therefore, that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

All concurred, except Latjghlin, J., who dissents in opinion.

Laughlin, J. (dissenting):

This action was brought to recover damages caused to plaintiffs canal boat by a collision alleged to have occurred through defendant’s negligence. Plaintiff was the owner of the canal boat John Anson which, on the morning of the 25th of October, 1899, was being towed from Rochester to Buffalo along the Erie canal by defendant’s steamboat, the W. B. Kirh. Plaintiff’s boat had no cargo, and as the wind was blowing hard from the south it was very difficult for the steersman to keep the boat clear of the north bank of the canal. 'The evidence would have justified a finding that this was known to those on board the Kirh. At about five o’clock in the morning, and when in the neighborhood of a mile west of Brock-port a fleet of boats was discovered approaching from the west. These boats were being convoyed by the steamer Alpha, and are referred to in. the evidence as the steel fleet. When these approaching boats were from 500 to 700 feet apart two whistles were given by one of the towing vessels which were responded to by the other, but there was a sharp conflict in. the evidence as to whether the Kirh or the Alpha was the first to signal. The fleets thereupon, when from 300 to 500 feet apart, proceeded to change their course so as to pass on the left or starboard side. Those on board plaintiff’s boat were unable to change her course, so as to follow the Kirh to the other side of the canal, and when the head vessel of the steel fleet struck the towline of plaintiff’s boat the boats were brought together, resulting in a collision which sank • plaintiff’s canal boat. After the signals the boats slackened their speed. The Alpha was moving at the rate of from two and one-half to four miles an hour, and the Kwh had slackened down from a speed of about five miles an hour.

Section 169 of the Canal Law (Laws of 1894, chap. 338) provides that “ The master of a float meeting another float shall turn to the right, so as to be wholly on the right side of the center óf the canal.” And section 160 defines the term “float” as including every boat, vessel, raft or floating thing navigated on the canals or moved thereupon under the direction, of some person having the charge thereof,” and defines “ master ” as including “ every person having for the time the charge, control or direction of any such float.”

Subdivision 1 of section 11 of the Navigation Law (Laws of 1891, chap. 592) provides that When two steamboats are meeting, end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard so that each may pass on. the port side of the other.” Subdivision 5 of the same section provides as follows : Every vessel under steam when approaching another steamboat or small boat or vessel of any kind, so as to involve the risk of collision, shall slacken her speed, or, if necessary, shall stop and reverse her engine, and every vessel under ’ steam shall, when in a fog, go at a moderate speed.” • Subdivision 9 provides that “ When two steamboats are approaching each other, and if the course of such steamboats is so far on the starboard side of each as not to be considered by the pilots as meeting end on or nearly so, or if. the steamboats are approaching each other in such manner that passing to the right as in rule one is deemed unsafe by the pilot of either steamboat, the pilot so first deciding shall give two short and distinct blasts on his steam whistle, which the pilot of the other steamboat shall answer promptly by two blasts of his steam whistle, and they . shall pass to the left (on the starboard) side of each other.” Subdivision 14 provides that In construing these provisions, due regard must be had to all the dangers of navigation, and to any special circumstances which may exist, rendering a departure therefrom necessary in order to avoid immediate danger.”

If the first signal to pass to the left or starboard side was given by the Kwk it was and is plaintiffs contention that defendant’s negligence would then be clearly established. If, on the other hand, the first signal to so pass was given by the Alpha, defendant’s liability would depend entirely upon other facts. Inasmuch as a general verdict only was rendered, the record fails to show how the jury decided the question of fact as to which steamer first gave the signals. It ■ is thus evident that if the jury were not properly instructed upon the law applicable to the facts whichever way they might find them, a new trial must be awarded if the error is presented by an exception.

The court properly charged the jury that if the Kirie first gave the signals and her tow was crowded to the north bank of the canal and held there by the wind, and the circumstances were such that, it was unsafe and unreasonable to attempt to pass to the left, that they might find the defendant guilty of negligence. . The court then instructed the jury as follows: “ On the other hand, if the pilot of the Alpha, having these loaded boats in tow, deemed it more prudent or safe for the boats to pass to the left, and he so decided and gave the signals, it was the duty of the pilot of the Kirie to respond, unless there was imminent danger of collision. Unless danger was imminent, it was his duty to respond and pass to the left. If you find that there was not such imminent danger of collision as justified the pilot of the Kirie in not responding to the signal, it was his duty to pass to the left. It will be for you to say whether, under those circumstances, he could have prevented collision of the canal boat and the steel, fleet by the use of reasonable care. The only other thing which the captain of the Kirie could do, was to cast off the line and leave the canal boat at the north side of the canal where it probably would have been safe. You will determine which of the pilots gave the signal, and if it was first given by the pilot of the Kirk, and under such circumstances as constituted negligence on the part of the employees of the defendant, and if that occasioned the accident, your verdict may be for the plaintiff. If the signal was first given by the pilot of the Alpha, and was responded to by the pilot of the Kirk, as he was bound to do, you will determine whether there was anything which the employees of the Kirk could have done to avoid the injury, which they did not do.”

At the close of the main charge the counsel for the defendant requested the court to charge “ that if the pilot of the Alpha gave two short and distinct blasts on his steam whistle first, it was the duty of the pilot of the Kirk to answer promptly by two blasts of his steam whistle, and that then the two steamers were required to pass to the left side of each other, and the plaintiff was not entitled to recover.” To this the court responded as follows : “ That is so, unless while passing to the left the defendant’s employees were negligent and could have prevented the accident by the exercise of reasonable care.” Plaintiff’s counsel did not except to any of the foregoing provisions of the charge, but he immediately, after the charge given at the request of defendant’s counsel, requested the court to instruct the jury as follows: “ That in case the jury reached .the conclusion that the Alpha signaled to pass to the left first, then the defendant, for the protection of plaintiff’s boat, was bound to exercise proper- care and diligence in the management of its own boat, whether such care required an observance of or a departure from the general rules of- navigation, and the defendant was not bound at all hazards to comply with signals- from the Alpha to pass to the left; and that if under all the circumstances-reasonable care and prudence for the safety of plaintiff’s boat dictated that it was safe and hest to disregard the signal of the Alpha, it then became its duty to notify the officers on board the approaching steamer that the Ki/rh, with the plaintiff’s boat in tow, Could not without. risk attempt to pass to the left, but that it would retain its position . along the right side of the canal and pass to the right of the approaching boats.”

' The court declined to vary the charge in that respect, to which ruling plaintiff’s counsel duly excepted. Plaintiff’s counsel thereupon asked the court to charge “ that the law does not require a boat, that has been signaled to pass either to the right or to the left ■ of an approaching boat, to obey such signal, when to do so is to . endanger the boat so signaled, or other boats which it may have in tow.” The court declined to vary the charge, and plaintiff’s counsel duly excepted. This is not a case of a multitude of. somewhat similar or misleading requests, framed for the purpose of entrapping the court into committing some error. Defendant’s counsel presented but two requests, and plaintiff’s counsel presented only two. While the court, in the body of the charge, fairly stated the correct rule of law upon this question, that if the signals were first given by the Alpha, it was the duty of the pilot of the Kirh to accede thereto, unless by so doing there was immediate danger of collision, yet the last sentence was misleading in that it stated unequivocally that in such case the pilot of the Ki/rh was bound to respond and eliminated the circumstance of immediate danger which would relieve him from ’ such obligation. Probably this would not constitute reversible- error even if an exception had been taken thereto, but the .purpose of defendant’s counsel’s requests to charge, which was granted by the court, was to modify the first part of the main charge in this regard and to make it clear to the jury that the defendant’s pilot had no discretion and nothing to say as to the side upon which the boats should pass, provided the signals were first given by the pilot of the Alpha. The provisions of the Canal Law hereinbefore quoted, and rule 1 of the Navigation Law, also, quoted, prescribed the general rule for vessels navigating the canal and required that they should turn to starboard or to the right and pass on the port side of each other,. The exception is provided in rule 9 for cases where the pilot of either of the approaching steamers deems it unsafe to pass to the right, and in such case, such pilot shall signify his determination in that regard by two short and distinct blasts of the whistle. Under ordinary circumstances it then becomes the duty of the pilot of the other steamboat to answer by two blasts of the Whistle, and the boats are required to pass to the left side of each other. It is, however, manifest that rules 5, and 14, also quoted, were designed to authorize a departure even from rule 9, where the dangers of navigation or any special circumstances rendered a departure therefrom necessary in order to avoid a collision. The pilot of the Kirh in such emergency, instead of responding with two whistles, could have given a danger or other signal and both fleets could have slowed down, the Alpha stopping if necessary if She could not safely pass to the right; until the Kirh could get her tow to the south side of the canal out "of danger. The requests to charge made by plaintiff’s counsel were manifestly for the purpose of having this rule of law properly and clearly presented to the jury. The attention of the court was sufficiently called to the error in the charge already made, for the request to charge was diametrically opposed to the charge as made by the court immediately before. Defendant’s sole remedy was not to except to the charge as made. The original charge having been modified by the granting of defendant’s request to charge, the particular way in which the charge so modified was desired to be qualified by plaintiff was sufficiently pointed out by embodying the particular qualification in the request to charge. Even if the court did not intend, by the instructions given at defendant’s request, to change the previous charge, which is not free from doubt,, yet the jury may well have been confused or misled thereby, and as plaintiffs request embodied correct propositions of law applicable to a material issue," the jury should have been so informed. The charge was inconsistent and conflicting, and it being impossible to say whether the jury adopted the correct or the erroneous instructions, the verdict should not be permitted to stand. (Black v. Brooklyn City R. R. Co., 108 N. Y. 640; Kankakee Stone & Lime Co. v. City of Kankakee, 128 Ill. 173; Brown v. McAllister, 39 Cal. 573; Summerlot v. Hamilton, 121 Ind. 87; Martinowsky v. City of Hannibal, 35 Mo. App. 70.) I think the court’s refusal to charge as requested clearly constitutes reversible error.

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

Judgment and order affirmed, with costs.  