
    NILES CASE, Respondent, v. FRANK PEREW, Appellant.
    
      Evidence — of the existence of means, available to a pa/t'ty sued, for negligence, by which, the injury might have been covoided — when the opinion of a witness, formed upon his personal experience, is admissible — an almanac is admissible to show the hour at which the moon rises — judicial notice — the opinion of a witness is not admissible as to a question to be determined by the jury.
    
    On the night of October 2,1881, the plaintiff’s canal boat was moore'l in the harbor at Buffalo, lying outside and abreast of two other canal boats in what is known as Peck slip, which extends from Buffalo river to the ship canal, and is used by vessels passing from the river to the canal. The defendant’s propeller came up the river and in turning to enter the slip, for the purpose of proceeding through it to the canal, struck the plaintiff’s canal boat and did the injury, to recover damages for which this action was brought. The evidence tended to show that sometimes a tug was employed, and sometimes lines were thrown out and used for the purpose of guiding the vessel and that neither was used by the defendant. Upon the trial the plaintiff was allowed, against the objection and exception of the defendant, to give evidence on the subject of the use of a tug to take a vessel into and through the slip.
    
      Held, that the evidence was admissible to prove that there were means and facilities, known to those running vessels in the harbor, which were usual and which, the jury might find, would furnish a greater degree of safety and protection to boats lying in the slip than would attend the omission to adopt such precau_ tionary measures, and as bearing upon the question whether it was negligence on the part of the defendant to proceed without availing himself of these accessible means of placing the movement of his- vessel more effectually under control.
    The evidence on the part of the plaintiff tended to prove that there was a lighted lamp at the widow, and inside of the cabin of his canal boat, so situated that it might have been seen from a vessel going up the river and before reaching the slip; that it gave a good, bright light; that there was nothing in the way, and that it might have been seen a quarter of a mile on the river below the place where the boat lay. Another witness, who had been engaged many years upon the lakes as a mariner and was familiar witli the situation of this harbor, on being asked how far a bright light of a lamp at the window of the cabin of the plaintiff’s boat could be seen by a person on the pilot-house of the propeller coming up' the river, answered about 450 or 500 feet.
    
      Held, that an objection to the admission of the answer, made upon the ground that it was incompetent and immaterial and not matter for expert testimony, was properly overruled.
    
      McKerehnie v. Standish (6 H. Y. "W. Dig., 433) distinguished; Horthrup v. New York, Ontario and Western Bailway Company (37 Hun, 295) and Smith v Gugerty (4 Barb., 615-625) followed.
    The time of the collision was about midnight. The plaintiff offered and was allowed, against the defendant’s objection and exception, to put in evidence that portion of Dr. Jayne’s almanac which purported to show the time of the rising of the moon on October 2, 1881.
    
      Held, that judicial notice will be taken of the time the moon rises and sets on the several days of the year.
    That the court did not err, therefore, in admitting such evidence as it was to be assumed that it treated the almanac as correctly stating the time when the moon rose on the day in question, and received it in evidence to refresh the memory of the jury on the subject.
    
      State v. Morris (47 Conn., 179); Munehower v. Slate (55 Md., 11) followed.
    The defendant called.a witness, who had been mate and master of vessels for thirty years, and who was the mate of the propeller on the night in question, and asked him, “what do you say about the position of these canal-boats in respect to its being a proper or improper position to lie at night.”
    
      Held, that the evidence was properly excluded as the question called for the opinion of the witness upon a matter which should be determined by the jury upon the evidence produced
    Appeal by tbe defendant from a judgment of the Erie County Court entered on the verdict of a jury.
    The action was brought to recover damages alleged to have been sustained by injury to the plaintiff’s canal boat occasioned by the alleged negligence of the defendant in running his steam barge into it in Buffalo harbor on October 2, 1881, for which injury the plain tiff obtained a verdict for $500.
    
      Williaons & Potter, for the appellant.
    
      J. M. Humphrey, for the respondent.
   Bradley, <T.:

On the night of October 2,1881, the plaintiff’s canal boat “ Yictor ” was moored in the harbor at Buffalo in what was known as Peck slip extending from Buffalo river to the ship canal known as the Blackwell canal. And the defendant’s propeller “ Lyon ” came np the river and in turning to enter the slip, for the purpose of proceeding through it to the canal, the steamboat struck the plaintiff’s canal boat and did the injury complained of. The evidence on the subject of negligence of the defendant, and of contributory negligence on the' part of the plaintiff presented questions of fact in both respects for the consideration of the jury and supports the verdict rendered by them.

There was much evidence given as to the usual manner of entering steam vessels from the river into the slip, and it tends .to prove that sometimes a tug was employed for the purpose of guiding and controlling its course, and at other times lines were thrown out and used for a like purpose; when neither of these means are adopted a steamer coming up the river and entering, sometimes runs its bow against the dock of the upper side of the slip, and the turn of the vessel is in that manner aided into it. The evidence tended to prove that the night in question was dark. No tug was employed by the defendant to aid his vessel into the slip prior to the collision, and no line was used for the purpose. And the reason given for failure to use the latter was, that when attempt was made to throw it from the steamer the line fouled and was rendered ineffectual. The vessel was proceeding slowly to make the turn into the slip and the bow of it extended so far towards the dock that it struck the plaintiff’s boat lying there outside and abreast of two other canal boats. On the part of the plaintiff evidence was offered and given on the subject of the use of a tug to take a vessel into and’ through the slip, to which exceptions were taken by the defendant. There was no error in those rulings. It was .competent to prove that there were means and facilities known to those running vessels in the harbor winch were usual, and which would enable the jury to find, furnished a greater degree of safety and protection to boats lying in the slip than would attend the omission to adopt such precautionary measures, and as bearing upon the question whether it was negligence on the part of the defendant to proceed, without availing himself of accessible means of placing the movement of his vessel more effectually under control. • The cases cited by the defendant’s counsel do not support the contention to the contrary. The question for the jury, under the circumstances, to find was whether the method employed was a proper one, and with a view to that inquiry it was competent to advise them of other customary means used in the harbor for the purpose of accomplishing what the defendant sought to do with his vessel.

A witness was asked whether there was any difficulty in running a propeller of the size of the Lyon, headed up the creek, when properly handled either by lines or tug, into the slip there and avoiding collision with one of the' three canal boats lying abreast where these did, and was permitted to answer that he thought not. This was taken subject to the objection and exception of the defendant. The witness was an experienced mariner and familiar with the harbor, yet the question of the competency of this inquiry, in the form it was put to the witness, is not free from doubt, as it may be said the subject involved was matter for the conclusion of the jury rather than for the opinion of the witness. But in view of the fact that the attention of the court was not called to that particular objection by the ground upon which it was made, we tnink it is not available to the defendant. (Merritt v. Briggs, 57 N. Y., 651, 652; Crosby v. Day, 81 id., 212; Walker v. Erie Ry. Co., 63 Barb., 261, 268.) The specific objection taken was, that the foundation for the question had not been laid. The witness, it 'seems, -knew the size of the' propeller, the width of the creek and the slip, and a map of the situation was produced. lie testified, that he was entirely familiar with the harbor and Peck slip, that he had frequently gone through there with his propeller. He neither assumed that the defendant had or had not a tug to take his vessel through at the time in question. His evidence had relation to the facility with which the defendant’s propeller may have been taken into and through the slip properly handled with the aid of lines or a tug. The exception, therefore, was not well taken.

The evidence on the part of the plaintiff tended to prove that there was a lighted lamp at the window and inside of the cabin of his canal boat, so situated that it may have been seen from a vessel going up the river and before reaching the slip; that it gave a good bright light; that there was nothing in the way, and that it may have been seen a quarter of a mile on the river below the place where the boat lay. After this evidence was given without objection, another witness was asked how far a bright light of a lamp at the window of the cabin of the plaintiff’s boat could be seen by a person on the pilot-house of the Lyon coming up the river, to which objection was made that it was incompetent and immaterial and not matter for expert testimony, and the witness answered about 450 to 500 feet, and exception was taken to the reception of the evidence. The ability to answer the question intelligently was dependent upon some experience of observation. The witness had been engaged many years as mariner upon the lakes and was familiar with the situation of this harbor, lie, in his answer, had reference to the night time and to an unobstructed view. And while there may be other conditions influencing the effect of light and distance from which it may .come into view, they do not necessarily render the evidence of the witness incompetent, although they might when shown to exist go to qualify the force or weight of the evidence. The degree of the light is described as bright, and the size as that of a lamp in the cabin window. The evidence is of a fact derived from observation, and the conditions being in all respects the same, the distance which the light could be seen would be uniform as its effect is dependent upon natural cause only.

In McKerchnie v. Standish, (6 N. Y. W. Dig., 433), a witness who had made astronomy a study was permitted to state how far a certain vessel would be visible at half past six o’clock, p. m. on October fifteenth, if there was nothing to interrupt the view. The court, on review, remarked that this evidence was merely speculation and not to be relied upon unless other evidence failed, and that its competency even then was doubtful. The statement of the witness there does not appear to have been supported by any observation or knowledge other than that derived from his astronomical information and by that he must have undertaken to measure the obstructive force of twilight, merely by the application of science as an expert. Ve assume that the statement made by the witness of the distance the light could be seen was based upon his knowledge obtained from his observation as a mariner, and as such was competent for the same reason that a person who has given attention to the movement and velocity of railroad trains may give his opinion of their speed on occasions when he has observed their passage. (Northrup v. N. Y. O. & W. R. R. Co., 37 Hun, 295.) And as to the time requisite for walls of a building to dry and become fit for occupation. (Smith v. Gugerty, 4 Barb., 615, 625.)

The reason of the rule which permits such evidence is that knowledge on the subject is not common to all, but comes from the personal observation and experience of those only who have given it attention, or by habits and business have gained information which enables them to have and understanding^ express a judgment in respect to the matter of inquiry. And when without the aid of such evidence the jury might have no means of intelligently considering the fact. But the value when given of opinions is always for the jury to determine. The objection did not go to the competency of the witness but to the character of the evidence only. (Stevens v. Brennan, 19 N. Y., 255; Cushman, v. U. S. Life Ins. Co., 10 N. Y., 13.) These remarks are applicable to the objections to like evidence of other witnesses, except to that of the plaintiff which is not considered because he had before, without objection, testified to the same fact that he did in answering the question to which objection was taken.

The time of the collision was about midnight. The plaintiff offered and put in evidence that portion of Dr. Jayne’s almanac which purported to show the time of the rising of the moon on October 2,1881, to which objection and exception were taken. The almanac was not competent evidence as such to prove when the moon rose on that or any day. But if the statement on the subject in it was correct the defendant could not have been prejudiced by it. Judicial notice will be taken of the time the moon rises and sets on the several days of the year as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and invariable course of nature. It may be assumed that the court, treating the almanac as correctly stating the time when the moon rose on the day.in question, received it in evidence to refresh the memory of the jury on the subject. And in that view we think it was competent. (State v. Morris, 47 Conn., 179 ; Munchower v. State, 55 Md., 11; S. C., 39 Am. R., 414.) In the latter case the court held that the almanac was the most accurate available source of information on the subject and therefore competent. In England the ahnanac annexed to the book of common prayer has been treated as part of the law of that country, but as that did not contain anything about the rising or setting of the sun, Pollock, C. B., expressed doubt about the admissibility of the almanac as evidence of the fact. (Tutton v. Darke, 5 Hurl. & Norm., 647.) And in Collier v. Nokes (2 C. & K., 1012), it was beld tbat while tbe courts would take judicial notice of days they would not of tbe hours of tbe day in tbe calendar.

Tbe reason before stated we think supports the rubng of tbe court.

Tbe defendant called a -witness who bad been mate and master of vessels for thirty years, and was mate on tbe Lyon on tbe night in question, and asked him “ what do you say about tbe position of these canal boats in respect to its being a proper or improper position to lie at night % ” Tbe plaintiffs objection was sustained, tbe evidence was excluded and exception taken..- It appears tbat Peck slip was an artificial channel 200 feet wide through which vessels passed in going from tbe river to the ship canal; tbat along on either side of it were elevators; tbat it was usual for canal boats to lay along the sides and next to tbe docks of tbe sbp, and tbat it was within tbe harbor of Buffalo. -

Tbe evidence tended to prove tbat tbe space in width occupied by tbe three canal boats was about sixty feet, and tbat tbe propeller was thirty-five feet in width and 275 feet in length. Whether tbe position of these canal boats was proper or otherwise at night, depended upon facts which so far as appears may have been disclosed, and in tbat view tbe conclusion was for tbe determination of tbe jury. Tbe question called for tbe opinion of tbe witness and it does not appear to have been competent on tbe subject. There was no error in this ruling.

Tbe case of Ferguson v. Hubbell (26 Hun, 250) cited by counsel, was reversed for tbe reason tbat tbe opinions of witnesses upon tbe subject there involved were incompetent as evidence. (97 N. Y., 507.)

Tbe question raised by motion for nonsuit tbat tbe omission of tbe plaintiff to have on bis boat tbe light required by the city ordinance was properly disposed of by denial of tbe motion. While tbe omission was a fact properly for the consideration of tbe jury on the question of tbe plaintiff’s negligence, it did not necessarily establish tbat fact for tbe purpose of tbe defense. (McGrath v. N. Y. C. and H. R. R. R. Co., 63 N. Y., 522.) None of tbe exceptions seem well taken.

Tbe jugment should be affirmed.

Smith, P. J. and BaRicee, J., concurred; Lewis, J., not sitting.

Judgment affirmed.  