
    Minerley v. Union Ferry Co.
    
      (Supreme Court, General Term, First Department.
    
    February 14, 1890.)
    Negligence—Violation of-Statute—Burden of Proof.
    Laws N. Y. 1848, c. 331, provides that all steam-boats passing up and down certain portions of the East river shall be navigated, as near as possible, in the center of the river, except in going in or out of their usual berths, and shall not be propelled above a certain rate of speed, and provides a punishment for its violation by the master, pilot, or engineer of any steam-boat. Held, that proof of the violation of the statute by the pilot of a ferry-boat was not such absolute proof of negligence on his part as to preclude his recovering for injuries sustained in a collision, but merely placed the burden upon him of showing, not only that defendants were negligent, but that his violation, of the statute in no way contributed to the injury.
    Appeal from circuit court, New York county.
    Action by Charles Minerley, Jr., against the Union Ferry Company of Brooklyn. Plaintiff appeals from a judgment dismissing his complaint on the merits.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Abbett & Fuller, (Henry Schmitt, of counsel,) for appellant. B. D. Silliman, (Frederic A. Ward, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover damages sustained by the plaintiff alleged to have been caused by the negligence of the pilot in charge of one of the ferry-boats of the defendant. It will not be necessary, in considering the only question to be discussed in the disposition of this appeal, to state in detail the evidence that was produced on both sides upon the trial of the action. It will suffice to state the general features of such evidence, and the apparent ruling of the court upon certain portions thereof, in order to come to a conclusion.

The plaintiff in this action was a pilot having charge and sole control of the Erie Annex steamer City of Chester, which was accustomed to run between Brooklyn and Jersey City. The defendants own and control, among others, the ferry from the foot of Whitehall street, New York, to the foot of Hamilton avenue, in the city of Brooklyn. On the morning of the 7th of August, 1885, the plaintiff left his slip at the Fulton Ferry, in Brooklyn, on his usual trip to Jersey City; and he proceeded upon his course until he neared the Hamilton Ferry slip, at the foot of Whitehall street. A boat called the Monticello was coming out from said slip, and another boat, the Brooklyn, was making for said slip on her trip from Brooklyn. The position of the plaintiff’s boat is variously stated by the witnesses on the part of the plaintiff and of the defendant; the defendant claiming that she was running along close to the pier-heads, and very far from the middle of the river, and the plaintiff claiming that, although she was much nearer the pier-heads than the middle of the river, yet still she was as near the center the river as she could be under the circumstances. It was further claimed upon the part of the defendant—and the evidence seemed to establish the fact—that she was proceeding down the river at a rate of more than 10 miles an hour. The Brooklyn and the Chester came into collision, and the plaintiff was injured. Among other evidence offered upon the part of the defendant was chapter 321 of the Laws of 1848, entitled “An act in relation to the navigation of the East river by steam-boats,” which is in the following language: “Section 1. All the steam-boats passing up and down the East river, between the Battery, at the southern extremity of the city of New York, and Blackwell’s Island, shall be navigated, as near as possible, in the center of the river, except in going into or out of the usual berth or landing-place of such steam-boat, and shall not be propelled at a greater rate of speed than 10 miles an hour. Sec. 2. The master, pilot, or engineer of any steam-boat violating either of the provisions of the foregoing section shall be deemed guilty of a misde«meaner; and, in addition thereto, the master, pilot, and engineer of such steam-boat shall, respectively, be liable to the penalty prescribed in section nine, title ten, chapter twenty, of the first part of the Revised Statutes, tobe •sued for and applied as therein directed.”

It was claimed upon the trial that the evidence showed that the plaintiff’s steam-boat was not as near as possible in the center of the river, and that she was propelled at a greater rate of speed than 10 miles an hour, and therefore that he was shown to have been guilty of negligence by this violation of the statute; and for this reason, it would seem, the court dismissed the complaint. This, we think, was error. The statute nowhere decides that a violation of its provisions shall be negligence, as a matter of law. It provides a punishment for the violation, but nothing is said as to the liability of being subject to any other penalty than that therein prescribed. Under these circumstances, proof of the violation of the statute is not such absolute proof of negligence as the court below seems to have considered it. It is undoubtedly true that a person failing to comply with the requirements of the statute above referred to is prima facie guilty of negligence. The failure to conform to the statutory requirements may be qualified by circumstances, bearing upon the question, which may rebut the presumption arising from the failure to -comply with the statute; and, where there is such a condition of the proof, the question of negligence becomes one for the jury, in view of all the evidence offered in the case, the statute included. McRickard v. Flint, 114 N. Y. 222-227, 21 N. E. Rep. 153. In the case at bar, evidence was offered upon the part of the plaintiff from which the jury might possibly have inferred that the violations of the statute which were established by the evidence in no manner contributed to the happening of the accident, except the mere fact that by the violation of the statute the plaintiff was in the position in which he was. But, even if he was in that position in consequence of his violation of the statute, this gave no right to the other boats in the river to run him down. He had made himself liable to the penalties prescribed by the statute, and he had also made himself liable, in case of accident, to the presumption that the accident had arisen because of his violation of the requirements of the statute; and these were the only burdens which such violation imposed upon him. It seems, however, to have been considered by the court below that upon proof of this violation all right upon the part of the plaintiff to a recovery for damages sustained in consequence of defendant’s negligence was ended. As already said, we do not think this to be the true rule of law. It placed the burden upon the plaintiff of establishing, not only that the defendant was negligent, but that his violation of the statute in no manner ■contributed to the happening of the accident; the presumption as to bis own negligence, because of the violation of the statute, being against him. The •conflict of evidence between the witnesses upon the part of the plaintiff and the defendant, as to the happening of the accident, raised the question as to whether the violation of the statute, and the subsequent management of the plaintiff’s boat, in any manner contributed to it. This was a question for the jury, and they were to determine whether the plaintiff had given sufficient excuse to rebut the presumption which his alleged violation of the statute raised. We do not think, therefore, that the court was justified in the extreme view which it took in reference to this matter; and it should have submitted the question to the jury, instructing them as to the effect of the statute in question, and leaving the evidence with them to weigh, and determine whether the plaintiff had rebutted the presumption which his violation -of the statute entailed. Under these circumstances, we think that the judgment was erroneous, and must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  