
    Houghton vs. Walce and others.
    A boat, eleven feet wide in the hull, and ninety feet long, built with locker seats, inside, finished off for carrying passengers, and used chiefly for the conveyance of passengers and express freight, on the Erie canal, between the village of Mohawk and the city of Utica, making daily trips, is fairly a passenger boat, or boat “ used chiefly for the conveyance of” passengers, within the terms and intent of the statute (1 B, S. 246, 6th ed,; p. 627, § 24,) and entitled to a preference over other boats, not used for that purpose, in entering and passing through a lock.
    The plaintiff was the owner of a boat used chiefly in the transportation of passengers, on the canal. When approaching a lock, the boat overtook the defendant’s boat, (which was a freight boat,) and attempted to pass, the plaintiff claiming a preference, under the statute, The defendant endeavored to prevent the plaintiff’s boat from passing his, and shoved the bow of his boat over, towards the plaintiff’s boat, to head it, and finally ran his boat into that of the plaintiff, just as the latter reached the lock, and seriously injured such boat. Held that it was error in the court, in an action for damages, to direct a nonsuit, and to take the case from the jury on the ground that it was a case of contributory negligence on the part of the plaintiff.
    
      
      Held, also, that it was not a case of negligence; and the plaintiff had a right to have the case submitted to the jury, whether the injury to his boat was not caused by the willful and malicious acts and conduct of the defendant.
    aAHIS is an action to recover damages for an injury - to the plaintiff’s canal boat, caused by a collision with the defendants’ boat, in the Erie canal.
    The action was commenced in a justice’s court, where the plaintiff recovered a verdict for $52.80. The case was then. appealed to the county court of Herkimer county, where a new trial was had, and the plaintiff nonsuited. The evidence in the case shows that the plaintiff was the owner of a canal boat used chiefly in the transportation of passengers as a packet boat, between Utica and the village of Mohawk, between which places she made daily trips. At the time of the injury, the plaintiff was going eastwardly, from Utica, and arrived near a lock in the canal, at Frankfort, when he overtook the defendants’ boat and attempted to pass, claiming a preference under the statute, on the ground that it was a packet boat engaged chiefly in the conveyance of passengers, and was therefore entitled to pass the defendants’ boat, and enter the lock before such boat. The defendant endeavored to prevent' the plaintiff’s boat from passing his, and shoved the bow of his boat over towards the plaintiff’s boat,.to head it, and finally ran his boat into the plaintiff’s boat, just as the latter reached the lock, and injured it quite seriously.
    At the close of the case, the defendants’ counsel moved that the plaintiff be nonsuited,, on the ground that the plaintiff’s boat was not used chiefly for the conveyance of passengers, and hence was not entitled to any preference on that ground; and, 2d. That the plaintiff was guilty of contributory negligence, and for that reason was not entitled to recover. The plaintiff’s counsel asked to go to the jury on these and other questions, and upon the question whether the- defendant intentionally and willfully ran his boat ihto the plaintiff’s boat. The court refused to submit such questions to the jury, and directed a nonsuit, and the plaintiff’s counsel duly excepted to such decision.
    The plaintiff appealed to this court from the judgment of nonsuit.
    
      J. A. Steele, for the appellant.
    
      Ely T. Marsh, for the respondents.
   By the Court, E. Darwin Smith, J.

The county court erred, I think, in directing a nonsuit in this action. The case does not state upon what precise ground the nonsuit was put. If put upon the first ground stated by the defendants’ counsel—that the plaintiff’s boat was not entitled to a preference over the boat of the defendant, under the statute, on the ground that it was chiefly employed in the conveyance of passengers—I think it was error. The statute'(1 R. S. 245, 5th ed., p. 672, § 24,) is as follows : “When a boat used chiefly for the conveyance of persons shall overtake any other boat not used chiefly for that purpose, it shall be the duty of the master of the latter to give to the former every practicable facility for passing, and, whenever it shad become necessary, to stop until such passage boat shall have fully passed.” The plaintiff’s boat, as he testified, was a light packet boat, 11 feet wide in the hull and 90 feet long, and was a passenger boat built with locker seats inside, and finished off for carrying passengers, and used chiefly for the conveyance of passengers and express freight between the village of Mohawk and the city of Utica, between which places he made daily trips. It seems to me the plaintiff’s boat, as described by him and the other witness, was fairly a passenger boat or boat chiefly used for the conveyance of passengers, within the terms and intent of the statute, and was clearly entitled to the preference given by the statute and claimed by the plaintiff at the time. The plaintiff, in this view, was, clearly in the right in asserting and claiming his privilege to a preference in passing the defendants’ boat and going into the look.

But if there was doubt on this point, the court clearly erred in taking the case from the jury on the ground that it was a case of contributory negligence on the part of the plaintiff. The case was not one of negligence. The plaintiff had a right to have the question submitted to a jury, whether the injury to his boat was not caused by the willful and malicious acts and conduct of the defendant. It seems to me the evidence would have warranted a verdict for the plaintiff upon that ground. At least, the question should have been left to the jury.

A party navigating the canal, independent of the question above considered, as in the case of a person travelling on the highway, has doubtless the right to keep his course in the centre of the canal, in the ordinary course of navigation or travel; but he has no right to hinder a person seeking to move faster or seeking to pass him,. by obstructing his way causelessly and wantonly. Much less has he a right to do bim or his conveyance any direct, willful or intentional injuries. (Sanford v. Eighth Av. R. R. Co., 23 N. T. 343.)

It clearly appears from the evidence that when the plaintiff’s boat was passing the defendants’ they caused the bow of their boat to be shoved over, out of its course, to head the plaintiff’s boat, and that they started, their boat forward with all their force, and continued in motion towards the plaintiff’s boat, declaring that if the plaintiff’s boat went into the lock ahead of them they would split it in two. Threats of this kind were testified to by the plaintiff and several other witnesses. I think it was clear error to refuse to submit the question to the jury on tliis ground, and that the plaintiff’s exception to the refusal of the county judge, on this point, was well taken.

[Fourth Department, General Term, at Rochester,

April 1, 1873.

Mullin, Talcott and E S. D. Smith, Justices.]

The judgment should be reversed, and a new trial granted in the county court, with costs to abide the event.  