
    Sarah A. Carlin, as Administratrix, etc., Plaintiff, v. The New York, New Haven & Hartford Railroad Company, Defendant.
    (Supreme Court, Kings Trial Term,
    April, 1911.)
    Death by wrongful act — Pleading, evidence and instructions — Plead- N ing — Complaint — Variance.
    New trial— Grounds — Verdict or findings contrary to law or evidence: Verdict contrary to evidence — Credibility of witnesses: Excessive damages.
    Pleading—Pleading statutes, municipal ordinances or corporate bylaws— Public statutes — Statutes of the United States.
    In an action for wrongfully causing the death of an employee of a railroad company that owned a car float and tug that came into collision with another similar tow, owned by another company, in the North river, where the complaint alleged ihe collision to have been between the tugs, but the proof, received -without objection, showed the collision to have been between the car floats, and where no objection was made at the close of plaintiff’s ease, the variance was immaterial and the pleadings should be amended to conform to the proof.
    The Federal statutes regulating navigation are to be considered by juries in cases where they are applicable, and they need not be offered in evidence.
    The jury may reject the evidence of an interested party whose testimony appears to differ from that given by him upon a former trial.
    A verdict for $10,000, for causing the death of a man, steady, industrious, of good habits, thirty-nine years old and earning about fifteen dollars a week, is not excessive, although it carries interest since the death of the deceased which brings it up to $15,000.
    Motion to set aside the verdict and for a new trial in an action to recover damages for causing- the death of plaintiff’s intestate.
    Pearsall & Pearsall (Rufus O. Catlin, of counsel), for plaintiff.
    Charles M. Sheafe, Jr., for defendant.
   Putnam, J.

This is an action to recover damages for the death of plaintiff’s husband, who lost his life on March 24, 1903, while employed as a float-man on one of the New York Dock Company’s car floats being towned by the tug John L. Brainard. During dense fog, early in the morning, a collision occurred between the car float upon which plaintiff was employed and a car float being towed by the tug Transfer No. 10' owned by the defendant. The original "action was against both the railroad company and the New York Dock Company, in which a judgment dismissing the complaint was reversed (135 App. Div. 876; 137 id. 71; 198 N. Y. 600; 200 id. 598); and the second trial is against only the defendant railroad company.

The testimony indicated that the fog was so dense that those navigating the" defendant’s tug did not see the tug Brainard and its car floats until the floats were but a very short distance apart, when both tugs reversed their engines, without wholly stopping their headway, as the cans on the dock company’s float were lifted off the tracks and one was impelled, across and onto the railroad company’s car float, which movement crushed Thomas Carlin’s head, causing his , death. The collision was in the North river, about midway between the Battery and the New Jersey shore, at about ten or fifteen minutes past six a. m. The master of Transfer No. 10 testified to a haze when he left pier 45 East river, so that he was sounding a regular fog whistle; that off South Ferry vessels could be seen 600 or JOO feet away, when he stopped for ferry boats; that he then started up again with one hell, proceeding at a speed of about four miles an hour. The fog, however, increased and became so dense that from his position in the pilot-house he could see only a short distance, estimated as but 10 feet, beyond the front of the projecting car floats which extended 140 feet ahead of his tug. He admitted that before seeing the approaching boat he had heard one or two fog signals from forward about a minute apart whose direction he had not exactly located, but that he kept on until he heard a single blast whistle from the Brainard, just before she came out of the fog, which he answered with alarm blasts and then reversed his engine. Plaintiff had a verdict for $10,000.

Upon defendant’s motion to set aside the verdict, four points are urged:

First. The complaint alleged that the collision was between the two tugs, instead of stating that the actual impact was between car floats alongside and it is insisted that this' variance is material. Considering that this point was not taken at the close of plaintiff’s case, and that a tug with its tow alongside is usually .treated as a single vessel (The Civilta and The Restless, 103 U. S. 699), also that the evidence as to the collision details had been received in the prior trial without objection, also that the entire flotilla in tow of the Transfer was owned by the above named defendant and operated by its 'servants, there seems no merit in this point, which, if seasonably raised, would have been remedied by an amendment to conform the pleadings to the proofs.

Second. The jury were informed of a Federal statute in force at this time, being the act of Congress passed June 7, 1897, enacting regulations for preventing collisions, to be followed “ by all vessels navigating all harbors, rivers, and inland waters of the United States,” excepting the Great Lakes and rivers emptying into the Gulf of Mexico (30 Stat. at Large, pp. 96, 99), article 16 of which requires moderate speed in fog and' mist, with the additional regulation : A steam-vessel hearing, apparently forward of her beam, the fog-signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until the danger of collision is over.”

It is urged that this rule had not been proved, and as it had not been offered in evidence upon the trial, the charge to the jury introduced an element of which no evidence had been given. While the regulations of governing boards, local inspectors or pilot authorities are matters of proof, the courts of the State of New York are required to tafee judicial notice and enforce general statutes of Congress without any formal proof (Milliken v. Dotson, 117 App. Div. 527), even if the point be not urged by counsel and is originated by the court. Kessel v. Albetis, 56 Barb. 362. Indeed, it would be error for the jury to be instructed as to the management of the respective boats in a general way, without bringing before them the obligatory force of the statutes regulating the situation at the time. Belden v. Chase, 150 U. S. 674, 703. Upon the trial, counsel for defendant also requested the court to charge in its favor touching another provision of the same statute (Art. 18, rule IX) forbidding the use of certain signals in fog and directing only alarm blasts to be given when vessels are not in sight of one another. This requirement, that steam vessels in fog shall not delay to stop their engines until they are seen, but shall stop upon hearing an unlocated signal forward of the beam, is so imperative that recent decisions have refused to accept excuses and condemned navigators for failure to obey such a reasonable regulation. The El Monte, 114 Fed. Rep. 796; In re Clyde S. S. Co., 134 id. 97; The Georgia, 180 id. 863, 870. The finding of the jury that the 'master of defendant’s tug was negligent in this respect is, therefore, amply sustained.

Third. The jury were not obliged to accept the evidence of the master of Transfer No. 10 that his vessel was actually stopped when the vessels struck. Apparently, on the former trial, each captain testified that his own boat was backing away from the other and had actual stemway. 135 App. Div. 879. On this trial, the master of the Transfer merely claimed that his boat had stopped. This is the common illusion of an observer upon one of two approaching vessels in fog, that the forward motion is always from the other vessel and that the observer’s boat is stationary. The Herbert Manton, 14 Blatchf. 37, 40; Fed. Cas.. 6399.

Fourth. The verdict of the jury of $10,000 for a man thirty-nine years old, earning about fifteen dollars a week, is claimed to be excessive, as it- carries interest since 1903, bringing it up to nearly $15,000. It has been the plaintiff’s hardship that ¡she has had to w-ait eight years while this case has been in litigation. The authorities in this State do not hold that $10,00O' is excessive in the case of a steady, industrious man, of good habits, of the age of plaintiff’s intestate, leaving a dependent widow with other next of kin. Beecher v. Long Island R. Co., 53 App. Div. 324; Douglass v. Northern Central R. Co., 59 id. 470.

The motion to set aside the verdict is, therefore, denied.

Motion denied.  