
    John T. Hill, Respondent, v. John H. Starin, Appellant.
    
      Negligence—injury to a passenger on an excursion barge whose leg is cut off by a hawser which breaks from its fastenings—an §11,500 verdict held not to be excessive.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was a passenger upon an excursion barge which, together with the tug by which it was towed, was controlled, operated and navig ited by the defendant; that the hawser was carried through a chock in the bow of the barge and then diagonally eight or nine feet to a cleat on the starboard side of the barge, the loop or spliced eye in the end of the hawser being drawn over the end of the cleat furthest from the bow, but no hitch was taken in the eye to prevent it from coming off the cleat; that the space in the bow where the hawser was attached was partitioned off from the rest of the deck, but the doors in the partition were unlocked and open, and evidence was given tending to show that passengers were permitted to pass out on the bow; that the plaintiff was standing in the bow when the tug made a sharp turn; that as the hawser became taut it tore away the chock and the rail on the starboard side as far as the cleat and either parted outside the barge or the loop came off the end of the cleat; that the plaintiff’s leg was caught b)r the hawser and was cut off at the knee.
    
      Held, that the evidence was sufficient to warrant a finding that the defendant did not exercise that degree of care in attaching the tug to the barge and in navigating them that, as a common carrier, he owed to his passengers, and that it could not be said as a matter of law that the plaintiff was negligent in being where he was or in not exercising better judgment under the circumstances to avoid the injury;
    That it could not be said that a verdict of $11,500 was excessive where it appeared that the plaintiff was at the time of the accident fifty-four years of age, earning nine to ten dollars per week as a roundsman in the employ of a telegraph company, and that he had a prospect of advancement; that he had enjoyed good health previous to the accident and, as a result thereof, had suffered much pain and was seriously disabled and crippled for life, and that his future employment would rest almost wholly upon charity and not upon his ability to earn money.
    Ingraham, J., dissented.
    Appeal by the defendant, John H. Starin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Everett P. Wheeler, for the appellant.
    
      J. Arthur Corbin, for the respondent.
   Laughlin, J.:

This is an action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The case was submitted to. the jury in a fair and impartial charge, to which no exception was taken. We are asked to set aside the verdict of the jury upon four grounds: •(!) That plaintiff was guilty of contributory negligence; (2) that no negligence on the part of the defendant was shown; (3) that it is for excessive damages; and (4) that it is against the weight of evidence.

On the 4th of July, 1898, plaintiff was a passenger on the baige Robert Curry, which was towed by the tug Titan. It was a Salvation Army excursion from West Twenty-second street to Long Island Sound. The fare for the round trip was fifty cents. The defendant controlled, operated and navigated the tug and barge. Plaintiff paid his fare, obtained a ticket, apd in company with a ' friend named Dillenberg went aboard the barge. The barge was one hundred and forty-two feet over all, thirty-one feet in "width and had two decks. Twelve feet and four inches from the bow a partition crossed the deck, and from that point to the stern the lower deck was inclosed. The upper deck did not extend in front of this partition. The deck was twenty-seven feet in width at the line of this partition. The partition had two sliding doors, each five feet in width, leading from the inclosed deck to the open deck at the bow, which stood open as claimed by plaintiff. This open deck in front of the partition was ten and one-half feet in length measured along the center line of the barge to the railing at the bow. About in the center of this open deck two beams known as “ bitts ” projected several feet above the deck. To the right and left of these bitts, and within about a foot and a half of the railing at either side, there was an iron cleat five feet in length from end, to end running nearly parallel with the curving line of the rail opposite. Each of these iron cleats was.attached to a block of wood two or three feet in length extending along the deck under them, leaving at either end a projecting end of the cleat one or one and a half feet in length.

The tug was lashed to the barge going down the North river until after passing the Battery, when it was unlashed and proceeded ahead, and was then attached to the barge by a hawser from 100 to 240 feet in length, which passed through a chock in the middle of the bow and then diagonally to the cleat on the starboard side, 8 or 9 feet distant, a loop or spliced eye in the end of the hawser being thrown over the end of the cleat farthest from the bow, but without a hitch in the eye to prevent its coming off the cleat.

When the barge was going up the East river, and about opposite Twenty-third street, plaintiff and his companion, who were on the lower deck, passed through one of these doors onto the bow, where they remained near the cleat to which the hawser was attached, and near or leaning against the rail, looking at the scenery and watching the spray thrown into the bright sunlight by the hawser which occasionally slackened and sank into the water and then suddenly became taut as the speed of the tug lessened or increased.

The captain testified -that the capacity of the barge was 900 passengers ; that the benches would accommodate 700, and that there were between 600 and 700 people on board. There was other evidence tending to show that there were about 800 passengers; that the barge was quite crowded, and that there were not sufficient seats to accommodate all the passengers. The captain and the mate testified that the bow was cleared of passengers off the Battery, again at the foot of Blackwell’s Island, and again at the upper end of the island, and the doors closed and hooked. Their evidence also tended to show that the plaintiff was among those on the bow at the Battery, and that he in particular was warned while there and subsequently. Their testimony in this regard was denied by plaintiff, who, in his denial, was corroborated by other witnesses. Other evidence was given tending to show that the passengers were permitted to freely pass in and out on the bow, and that at the time of the accident there were from fifteen to fifty people out there. The plaintiff and his companion testified that they had and heard no notice or warning that passengers were not permitted to go and remain upon the bow. There was evidence tending to show that, as the barge was passing through Hell Gate and about to turn into the Sound, the tide was at ebb, with a strong current, and the slackening of the hawser became more frequent; that the tug turned nearly at right angles making quite a loop in the hawser, and Dillenberg, seeing the hawser tearing its way up through the water, said to plaintiff: Hill, I think this looks dangerous; we had better go,” whereupon he turned back and jumped clear of the hawser and plaintiff started to follow ; that as the hawser became taut it tipped or heeled the barge over to starboard at such an angle that several passengers fell and furniture slid along the deck, and the passengers on the bow were hurrying back to the enclosed part of the deck, and about this time there was a noise, distinct and loud, described as a snapping or tearing or as if something was splitting. The hawser had torn away the chock and the rail on the starboard side as far as the cleat, arid had either parted outside the barge or the loop had come off over the end of the cleat (there was positive testimony both that it broke and that it did not) and plaintiff’s leg had become caught by the hawser and instantly cut off at the knee and carried many feet from the barge into the river, plaintiff falling upon the deck. Plaintiff offered other evidence tending to show that thé hawser should have been shorter and should have been attached to or passed around the bitts or made secure by a hitch in the eye so that it could not come off the cleat. The defendant presented evidence tending to show that the hawser was properly attached; that it did not break ; that the chock was in a reasonably safe condition and that the vessels were carefully navigated.

We are of the opinion that the evidence was sufficient to sustain a finding that defendant did not exercise that degree of care in attaching the tug to the barge and in navigating them that, as a common carrier, he owed to his passengers, and that it cannot be said, as matter of law, that plaintiff was negligent in being where he was or in not exercising better judgment under the circumstances to avoid the injury. The plaintiff fairly sustained the burden of proof, and we would not be warranted in setting the verdict aside as against the weight of evidence.

It is urged that the verdict, which was $11,500, is excessive. Plaintiff was fifty-four years of age, had been horn in England, and was a dry goods clerk in this country for seventeen years’and then for ten years in the employ of the American District Telegraph Company, where he had been advanced from the position of carrier to the position of roundsman in charge of six or eight men and with a prospect of further advancement. He had been in previous good health, and his work required him to be on his feet and out in all kinds of weather. He was earning from nine to ten dollars per week. He has not been able to earn more than five dollars a week since the accident, and is unable to do the character of the work which formerly had been his business. The barge landed in the vicinity of ¡Ninety-fifth street, and the plaintiff was taken ashore and placed in an ambulance and taken to the Presbyterian Hospital, where his leg was amputated some distance above the point of injury. He was in the hospital for seven weeks when, on account of the crowded condition of the hospital, he left, returning two or three times a week to have his injuries dressed. In addition to the loss of his leg he sustained a compound fracture of his right arm above the wrist, and his head, ribs and face were bruised and his left hand was cut. He was obliged to return to the hospital, as his right arm was paralyzed so that he could not use it at all It was known as crutch paralysis, and he then remained in the hospital for treatment for two months. The doctors have prohibited his using a crutch under his right arm, and he is obliged to use a cane. There was necessarily much pain and suffering, and plaintiff is seriously disabled and crippled for life. There is but little that he can do, and his employment will rest almost wholly upon charity and not upon his ability to earn money. The verdict seems large, but we cannot say that it is excessive.

The judgment and order should be affirmed, with costs.

Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

The testimony is undisputed that this plaintiff voluntarily placed himself in a position which subjected him to danger if the tow line parted, or any of the' apparatus used in towing the boat gave way. There was a small space at the bow of this barge partitioned off, and it was here that the tow line was fastened to the barge. It is true that there was a door which afforded access to this portion of the boat thus partitioned off, and that that door was not locked; but partitioning this portion of the barge from the rest of the boat to which the passengers had access, was itself an indication that the portion of the boat partitioned off was used in a different manner than that of the rest of the barge. The danger to a person placing himself alongside of this rope, in case the rope should break, was apparent. It was not an intricate machine, or a situation which a person of ordinary intelligence could not appreciate; and .when this plaintiff voluntarily placed himself in this position of danger, while there was plenty of room in the other portion of .the boat, I think he voluntarily assumed the risk of such an accident as happened, and that his act relieved the defendant from liability.

Judgment and order affirmed, with costs.  