
    LANDERS against THE STATEN ISLAND RAILROAD COMPANY.
    
      City Court of Brooklyn; General Term,
    
      November, 1872.
    
    Points on Appeal.—Jurisdiction of the City Court.—Liability for Personal Injuries Inflicted on Sunday.—The Policy of the Sunday Law.—The Act of Congress and the Common Law.
    The brief of counsel for appellants should reasonably direct the attention of the appellate court to such features of the case at least, as most plainly present the questions upon which the reversal of the judgment is asked; and if this is not done the court may refuse to examine such questions.
    Under the act of 1871 (Laws of 1871, p. 555, ch. 282), the city court of Brooklyn has jurisdiction where the plaintiff resides in Brooklyn, although the defendant does not do business in said city and is served with the summons in the city of New York.
    Under the amendment of the Constitution (art. 6, § 12, amended in 1869), and the acts of the legislature passed under the authority thereby conferred, the city court of Brooklyn, as reorganized, ceased to be a court of inferior and limited jurisdiction.
    Carriers of passengers having their boats in use on Sunday, and receiving persons on board, are liable for personal injuries suffered by them from the negligence of the carrier’s servants, notwithstanding the statutes respecting travel on Sunday.
    
    The statute which prohibits work, labor and traveling, on Sunday, was intended to encourage the quiet and proper observance of that day; and does not apply to a case where peaceable persons needing recreation and fresh air for the health of themselves or their children, go upon a ferry boat for a short excursion.
    Such persons are not traveling in the sense of the statute.
    It was not the intention or policy of the statute to protect the carriers of passengers from liability for mismanagement in carrying passengers on Sunday.
    The defendants were bound to use the highest degree of care and skill for the protection of their passengers.
    The act of Congress passed February 28. 1871, as to the inspection and licenses of steam vessels, was intended to provide for the better security of life, and comes in aid of the common law. To carry more steam than allowed under that act, is negligence, as matter of law.
    
    Appeal from, a judgment.
    Three separate actions were brought by administrators, to recover damages sustained by the death of John Madden, Michael Kelly and Patrick Landers, respectively, while on board the steamboat Westfield, on Sunday, July 30, 1871, and were severally tried before Judge Neilson and a jury.
    The Westfield was owned by the defendants, and at the time of the accident was engaged upon the ferry from New York to Staten Island. The accident occurred between the hours of one and two o’ clock in the afternoon of Sunday. The boat was in the ferry slip on the New York side, making ready to start on her trip, when suddenly the boiler exploded, killing a large number of passengers, and among others, Kelly, Madden and Landers. A verdict was rendered in each case for the full amount allowed by statute, and from the judgment entered thereon, the defendant appealed to the general term of this court. The appeals are submitted together, the cases being alleged to involve points of error common to all.
    The charge of Judge Neilson in the first of the cases, the charges in the other cases being of like character, is as follows:
    
      Gentlemen of the Jury:—It remains for me to discharge a duty which is imposed upon me, and which is to afford you any assistance I can to enable you to discharge the more burdensome duty that rests upon you. As you have learned from the testimony, the defendants, an incorporation, had in use on July 30 last a steamboat, the “ Westfield,” used in carrying passengers from the city of New York to Staten Island. The plaintiff and her husband and child were passengers on the “Westfield’’ at the time of the explosion, and the husband was killed. It does not seem to admit of much doubt, perhaps none, that that loss of life was occasioned by that explosion, yet it stands as a question of fact for you. It would seem to be admitted in the answer of the defendants, and when a thing is admitted in the answer that supersedes the necessity of proof. The plaintiff, having taken out letters of administration, brings this action to recover the damages suffered by that death.
    This peculiar action, not known to the common law, has been created by the statute. Our statute provides, in substance, that damages to the extent of five thousand dollars, to be estimated with reference to the pecuniary loss or injury, may be recovered by the representatives of the deceased for the benefit of the widow and next of kin, if such death was caused by a wrongful act, neglect, or default. The words used are comprehensive, and are put disjunctively—wrongful act, neglect, or default. The case, too, must be such that the deceased, had he survived, might have had an action to recover damages for the personal injury.
    All such actions are grounded in negligence. The plaintiff charges the negligence upon the defendant, and is bound to sustain that charge. The negligence of the defendant is an indispensable element of the case. By the term negligence is intended the want of that care which, under the circumstances of the particular case, might reasonably be expected from one of mature age, and possessed of forethought and prudence. But the degree of care is not the same in all cases. The relations of the parties, and the nature of the particular transaction which brings them together, enter into the ' question. In this instance steam power was used in transporting passengers. The relations which existed between the defendants and the deceased, are quite .clear and beyond dispute, and before you proceed to examine the testimony bearing upon the question of negligence, it is necessary that you should have in your mind clearly, the degree of care which was due from the defendants, as carriers, to the deceased as a passenger on their boat.
    The rule is this: The defendants, in receiving the deceased as a passenger on the “ Westfield,” were bound to carry him safely so far as human forethought would go, using the utmost care and diligence in respect to their means of conveyance, the boat, the use and control of the steam power, and faithfully to do all that human skill and forethought and the application of known, scientific methods would have enabled them to do for the protection of the passengers.
    The case confronts you in a double aspect: first, as to the condition of the boiler, machinery and appliances, which should have been in proper order and fit for use, so far as that could have been secured by care and skill; second, as to the steam power, that should have been attended to and managed with the greatest care, skill and vigilance, and with the use of the known and adequate appliances.
    As to each of the branches of the case you will consider what was done, what, if anything, was omitted or neglected, and thus bring yourselves to the determination of the question, whether or not that death was 'caused by a wrongful act, neglect, or default.
    To be more specific: You will inquire, first, whether this boiler, in view of the use to which it had been applied, had or had not been properly examined and repaired within a reasonable time prior to this explosion. 
      Second, whether or not its age should or should not have furnished an admonition to have more frequent and painstaking tests applied, if any could have been, to find indications of weakness in the boiler. Third, whether or not the then condition of the boiler justified, in the exercise of the utmost care and skill, the use or presence of steam power to the extent it was allowed to accumulate on this occasion. Fourth, whether or not the steam was allowed to increase too freely without sufficient provision for its escape. Fifth, whether or not the persons then and there in charge possessed the proper experience, and skill, and prudence, and if they were so possessed, then whether they were in fact sufficiently vigilant in the discharge of their duty.
    Other specific points will doubtless occur to you. But you are to consider such, and the like questions, with a view to the negligence charged, the wrongful act, neglect, or default mentioned in the statute.
    You will bear in mind that this corporation acted, and was then and there represented, by its agents and employees. What was done or neglected to be done, was the act, neglect or default of the defendants, as much so as if corporations could have been there in actual personality. In contemplation of law, they were present. The due sense of this leads, or should lead, corporations to select fit and proper agents, men of skill and vigilance, and inspire the agents themselves with a due sense of the trust assumed by them.
    I have thus stated to you the rule of law applicable, and indicated some of the special points of inquiry most directly involved. It is your duty to accept fully, and without a shade of mental reservation, the rules of law stated. The court has a right to claim that; your sworn duty imposes that. Thus, and only thus, do you cooperate with, the court in the discharge of an important duty. But, on the other hand, I wish to pay a like degree of respect to your great office; You are the sole judges of the weight of the testimony, and of the credibility of the witnesses. A sense of this restrains me from commenting upon the proofs at large, and from indicating to you what my own opinions may be on the questions of fact involved. If I could do so, I.would avoid disclosing what my convictions may be on this evidence. It may well be that my convictions may agree with yours. It may well be, also, that your apprehension may have enabled you to see through any disguise I may have attempted to assume in my wish of not intruding upon your province in respect to the facts. But, however that may be, you will sympathize with my wish to have the law properly administered, and the facts properly applied, as I shall sympathize with your wish and determination to mete out full and exact justice between these parties.
    Without pausing to indicate the characteristic proofs which have been fully brought to your notice by counsel, it is proper that I should call your attention to some points of the testimony in the case, in respect to which you should not be unduly influenced.
    
      First. Witnesses have been examined, who, by reason of their special experience and studies as to steam and steam boilers, take the character of experts, and, contrary to the usual course of examination of witnesses, are allowed to give their opinions. This is a kind of proof calling for great scrutiny. It is often dangerous, seldom conclusive. But opinions upon questions of skill and science are to be heard, and are to receive such respect as the jury may think them entitled to. You will consider the character and special qualifications of the witnesses—the reasonableness of the opinion given, the contradiction, if any, and accept what, and only what, satisfies your conscience and judgment. Such witnesses differ. Of that, you had significant illustrations. They could not be uniform, even as to the hammer test, a test in respect to which you may well have opinions. But you will deal with those witnesses as you think best. I have no right to say what you should believe or disbelieve. But it is my duty to caution you to scrutinize the testimony of these opinions, and to distinguish between facts secular and scientific, on the one hand, and mere opinions or speculations on the other. You are not to be controlled by the mere opinion of any witness, if in conflict with the opinion which you may adopt upon your enlarged examination of the case.
    In the next place, I have to call your attention to what has been said about the hidden mysteries of steam, and the conflicting theories which have existed as to the causes of steam boiler explosions. Such notions always creep into cases of this description, and tend to cast a shadow over the facts, and darken the judgment. It matters little how experts and scientific men may differ as to mere latent possibilities. So long as steam is hot, and the inside of the boiler an uncomfortable place for the student, there may remain room for speculation. But you should not allow yourselves to be discouraged in the free discharge of your duty by modest doubts in respect to unattained acquisitions. Without being fully initiated into the mysteries of steam—mysteries which Nature with a firm hand, still holds in reserve, you may consider whether we have not sufficient knowledge for all practical purposes— know that boilers may be defective, that steam can be managed and controlled by the use of proper methods, and the exercise of due care.
    In the next place, I wish to caution you as to the circumstances proved, and referred to by counsel, to wit, that the directors of this company living on Staten Island, travel on these boats. The evidence on that subject was objected to by plaintiff’s counsel, but I thought proper to receive it. The fact is before you that the directors went upon the boats of this com-pony to and from New York daily. It was due to them that the fact should appear. It goes to their good faith, but it does not touch the vital question before you. It may be that those directors had faith in their boat when they should not have had, in the skill and care and prudence of the men employed when they should not have had, and their presence or absence on these boats leaves the vital question for you to examine, and is not at all covered by the circumstance that they had faith in the boats or in the men.
    I have further to say, that you should dismiss from your minds all extraneous matters. It has been stated to you, and, I think, stated with undue freedom, as if it were a fact in the case proved before you, that there .are a great many of these cases, and that a recovery in each would amount to a great deal of money, and that the company would be ruined. I need hardly say to gentlemen of your intelligence, that there is no such evidence before you, and that it is becoming in you, as a matter of self-respect, as well as due to the court and to the parties, that you discharge from your minds all sense of any such matter. You will try this case as if this were the only case, irrespective of the question whether the. defendants will suffer or not.
    I have already called your attention to the double aspect of the case; first, as to the boiler and appurtenances; and, second, as to the accumulation of steam. It seems to me that the second of these branches of the case may be the most deserving of your attention. There were safety-valves for the discharge of the steam, and the question arises:—first, whether these valves, if put in full operation, would have passed off the excess of steam. Second, whether the valves were put in proper use to relieve the steam. Third, did the engineer devote to the. steam and to the use of the safetyvalves, the high degree of care and skill proper to the exigency, or not. These inquiries are for you. In this connection I call your attention to the act of Congress, which is set up in the defendant’s answer, under which they had this test of the boat in June—a few weeks before the accident—when the certificate was given.
    You are at liberty to consider whether that test, as proved here by the government officer, was fairly applied according to the requisition of the act to which counsel have called your attention, and then further consider whether the certificate to carry twenty-five pounds should have been exceeded under any circumstances. If I remember the evidence of the engineer, he stated that at no time after the last test or examination, had he allowed the steam on his boat to go up beyond twenty-five, except on this occasion. You will please inquire whether on this occasion there was any necessity for it, any excuse for it—whether there was any default or neglect in respect to it.
    The age of the deceased has been proved to you, and that he was a man in health, that he leaves a wife and child, and that brings the case within the statute as to recovering “ damages for the benefit of the widow and next of kin,” and if you come to the question of damages, you will consider what amount should be given, not exceeding, however, five thousand dollars.
    Among the numerous requests to charge, was the following:
    “If the decedent at the time of the injury complained of, was on board of the defendants’ ferry-boat” to be carried by defendants while traveling for pleasure, contrary to the statute, plaintiff cannot recover.
    Judge Neilson said :—I refuse to charge that. We have, gentlemen of the jury, a statute which prohibits work and labor on the Sabbath, also traveling, except going to and from church not exceeding twenty miles, and except to visit the sick, procure medical attendance and the like, and imposes a fine of one dollar. Our courts, in this State, have gone so far as to say. that a contract made on Sunday shall not be enforced, and that a person who performs work and labor on Sunday shall not recover for his services, and that, I believe, is the extent to which the courts of this State have as yet had occasion to go in the construction of that statute. Courts are obliged to put constructions upon a statute when a question presents itself as it does here, and very properly here, because, the question being a new one, counsel for the defendants have a right to take the point and hereafter be able to have it considered by the court above, if need be. We construe statutes with reference to the supposed intent of the legislature, and with reference to the policy of the particular thing involved in its effect. And when it has been found that a given construction of a statute was impolitic—works out injustice, then, from Lord Coke’s time down, courts have been very astute in hitting upon some construction that should avoid the particular evil. My own view is, that this statute answers the purpose for which it was passed ; that it has no connection whatever with a transaction like this, and that this fine of one dollar does not at all indicate an intent to have the statute reach a case where there may be traveling upon cars or steamboats, thousands of people, and where, from mismanagement or inefficiency of employees, lives may be lost.
    Moreover, this action does not arise strictly on contract. If it did, the question would, perhaps, present a different aspect. It arises under this statute of ours, giving the action in case of death caused by a wrongful act, neglect, or default.
    The question is the more respectable, however, from the fact that, under a like statute, the supreme court of Massachusetts has made the very same decision the counsel claims here. But the supreme court in Pennsylvania, and also the supreme court of the United States, at least in one case, where Judge Grier wrote the opinion, decided the other way. In this State we accept the decisions of courts of other States, so far as they commend themselves to our judgment and conscience, but no further. I think the law in Massachusetts is not to be followed. I have just then to add —perhaps it is unnecessary—that this is a question for the court, and one with which you will not concern yourselves at all. I make this decision because I believe it conforms to the intent of the legislature and the meaning of the statute, having, as you have, a profound sympathy with the keeping of the Sabbath.
    
      Beach & Brown, and Mr. Dickerson, Mr. Vanderpoel and George G. Reynolds, for defendants, appellants.
    
      Morris & Pearsall, for plaintiffs, respondents.
    
      
       See Merritt v. Earle (29 N. Y., 115), a case recognizing the same principle, which does not seem to have been brought to the attention of the court in this case.
    
    
      
       See Swarthout v. New Jersey Steamboat Co., 48 N. Y., 209.
    
   By the Court.

McCue, J.

It is but just to the appellate court to remark that we have received but little aid from the counsel by whom the appeals were argued, on behalf of the defendants. Our attention was but briefly called to two points, in relation to which it was claimed that the court below erred, namely :

First. That the city court had no jurisdiction.

Second. That the deceased were in actual violation of the law regulating the observance of Sunday, on which day the accident occurred, and that their deaths. could not therefore be the subject of a cause of action.

All the questions in the case, involving the questions of negligence, the charge of the court, the admission or rejection of evidence, and the exceptions, were submitted to us under this point:

“It is submitted that the judgment in this action is erroneous, and that the same should be reversed.”

This constitutes the entire printed point handed up in each case. When it is considered that these three cases contain nearly one thousand printed pages, it will be easy to see that it is quite possible to overlook many points of interest, and the propriety of the rule becomes very evident which requires that the attention of the appellate court should be reasonably directed to such features of the case, at least, as most plainly present the questions upon which the reversal of the judgment is asked.

It would seem from the printed point above cited, and from the oral statements of the learned counsel for the appellants, that the latter were disposed to rely entirely upon the supposed errors of the court below on the questions of jurisdiction, and violation of the Sunday law. I do not, therefore, feel called upon to examine at length the other questions raised, and the exceptions taken on the trial, as I should feel bound to do, had the points been raised and fully argued on the hearing.

It is claimed that the city court is a court of inferior local jurisdiction, within the meaning of article 6, section 14 of the Constitution ; that the acts of 1870 and 1871, extending the jurisdiction of the court, are unconstitutional ; and that, as the defendants were residents of New York, and were served with a summons in the city of New York, they are not properly in court.

Subdivision 5, section 14, article 6, of the Constitution, adopted November 3,1846, is as follows :

“Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities ; and such courts, except for the cities of New York and Buffalo,, shall have a uniform organization and jurisdiction in such cities.”

It was under this provision that the act was passed creating the city court (see Laws of 1849, ch. 125), and without further discussion we may admit that as thus created the city court was an inferior local court.

Reference to the judiciary article of the Constitution, as amended in 1869, will demonstrate that the objection has no force when applied to the court as at present constituted. Section 12 of the amended judiciary article provides as follow :

“The superior court of the city of New York, the court of common pleas of the city and county of New York, the superior court of Buffalo, and the city court of Brooklyn, are continued with the powers and jurisdiction that they now severally have, and such further criminal and civil jurisdiction as may be conferred by law.”

The city court of Brooklyn was to be composed of such number of judges, not exceeding three, as might be provided by law, and vacancies in the office of the judges named, occurring otherwise than by expiration of term, to be filled in the same manner as vacancies in the supreme court. Section 12.

The city court of Brooklyn thus became recognized by the supreme law of the land as a constitutional court, and no longer subject to be abolished by the legislature, by which it had been created. Recognizing the usefulness of the court, and the necessity which might require an extension of its power, the Constitution expressly authorized the increase of the number of its judges, and the conferring upon it by law of further civil and criminal jurisdiction. The language employed is without qualification, and should be understood in its natural sense. It will be observed that the city court is named in the same sentence with the superior court of the city of New York, and the common pleas of the city and county of New York, and the jurisdiction of all regulated by precisely the same words. This section oleo authorizes the legislature to detail judges of the superior court and common pleas to hold terms of the supreme court in that city, as the public interests may require. Evidently, then, these last-named courts and their judges were regarded as aids to the supreme court, and in certain cases equal thereto. It would be a great affront to the dignity of the supreme court to say that the Constitution had provided for the admission to its bench, from time to time, as the public interests might require, of additional judicial aid from among the judges of inferior local courts.

If a similar provision was not therein contained in reference to the judges of the city court of Brooklyn and of the superior court of Buffalo, it was probably because the framers of the Constitution regarded the judicial force already provided for in those cities as abundant. Reference is only made to this view of the case to show that it was clearly the intention of the Constitution, as it is now in force, to relieve these courts from whatever badge or mark of inferiority before attached to them, and to enable them to accept and exercise, without limit or restriction, such further civil and criminal jurisdiction as might thereafter be conferred by law, as fully as is exercised by the supreme court; and by “ law ” was meant the legislative power of the State vested in the Senate and Assembly.

Reference to another section of this same amended judiciary article should be sufficient, however, to set this question at rest. Section 19 reads as follows:

Inferior local courts of civil and criminal jurisdiction may be established by the legislature, and except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct.”

Had the language been other inferior local courts, there might be some pretense for argument that the city court was still regarded as an inferior local court. The language employed, however, admits of no other construction than that the courts named in section 12 were not inferior local courts.

The jurisdiction over the defendants was expressly given by the act of April 4, 1871, viz:

“To all other actions when the cause of action shall have arisen in, or when any of the parties to said action shall reside within the county of Kings, or when any of the defendants shall be personally served with the summons within said county” (Laws of 1871, § 1, ch. 282).

The plaintiffs were residents of the city of Brooklyn, and the summons in each case was served while the act above cited was in force.

The second cause of error alleged is that the deceased were engaged in the violation of the statute regulating the observance of Sunday. The defendants’ propositions may be briefly stated as follows :

The obligation between a common carrier and the person employing him, depends upon the contract between them. In these cases there were no valid contracts, and therefore all that the defendants could be held liable for was ordinary care and skill, and not for that extreme care and skill which would be required where a common carrier is engaged in the performance of a valid contract for hire.

We have been referred to a number of decisions of the courts of other States, which it is claimed sustain the doctrine contended for (1 Allen, 408; 14 Id., 485; 26 Penn., 342; 23 How. U. S., 218); and to one case in our own State (Nodine v. Doherty, 46 Barb., 59).

The Massachusetts cases, undoubtedly, hold the doctrine contended for, but the reasoning upon which the decisions rest does not commend itself to my judgment. “ They depend,” as was well said by Mr. Justice Grier in the case in 23 How. U. S., “on the peculiar legislation and customs of that State, more than upon any general principle of justice or law.”

The case of Mohrey v. Cook (26 Penn., 342), contains a very full review of the whole question. It holds that the law relating to the observance of Sunday defines the duty of the citizen to the State and to the State only, and that the defendants could not shield themselves from liability on the ground that the plaintiff was engaged in the violation of the law regulating the observance of Sunday. Instead of sustaining defendants’ theory, the decision, as I understand it, takes precisely the opposite view.

The case of Nodine v. Doherty (46 Barb.), instead of' being an authority in support of defendants’ position, lays down a rule which is fatal to it when applied to the present case.

Doherty hired of Nodine a carriage and horses for the purpose of taking a ride to Coney Island, a pleasure resort. While in his possession the horses ran away, having been left untied, although he was cautioned that it was unsafe so to leave them. The carriage was damaged, and Nodine brought suit, in a justice’s court, to recover for the use of the horses, and also damages for injury, done to the carriage. The plaintiff was nonsuited, and, on appeal to the county court, the judgment was affirmed. An appeal was taken to the general term of the supreme court, in the. second judicial district, and the judgment below reversed.

Lott, J., in delivering the opinion of the court,, says:

“ The contract was illegal, . . . and the plaintiff was not entitled to recover any compensation for the use of' the property hired. The defendant, however, could not, after obtaining possession of the property, willfully injure it or suffer it to be injured through his negligence.. Such conduct has no necessary or legitimate connection with the contract of hiring ; the owner does not forfeit or become divested of- his right to the property by its; delivery under it; he has a right to the return of it,, and if it is refused after demand, an action could be-maintained for the. recovery thereof, or its value, and there is no reason or principle why he should not as well be compensated for its deterioration, or any damage to it by reason of the fault of the party to whom it was hired. Such liability does not arise from the contract, but from a breach of duty in violation of the plaintiff’s rights, wholly irrespective of the contract.” '

The same doctrine was held in. the case of Harrison v. Marshall (4 E. D. Smith, 271). This was also the case of a horse hired upon Sunday and injured by the negligence of defendant. The general term of the common pleas, in reversing the judgment below, which was against the plaintiff, says : “The action is not for the proceeds of the hiring, but for damages for the wrong done.”

The role thus clearly and simply laid down may be applied with exactitude to the present case. Had an action been brought by any passenger on board of the Westfield to recover damages by reason of the-failure of defendants to convey him from New York to Staten Island, according to the contract made by the payment and acceptance of the ferriage, then the rule would have applied, that as the contract was illegal, and the breach of the contract was the foundation of the cause of action, there could be no recovery. But, as in the case of Nodine v. Doherty, it was held that the plaintiff had a right to the return of his property, and to recover damages for the injury done to it, either willfully or permitted by the negligence of the defendant, so in the present case we think the deceased had a right to 'skilled protection for life and limb while on the boat upon which they had been received as passengers, against the willful and negligent act of the defendants.

These are not the cases of travelers on a turnpike out of condition, by reason of which they meet with an accident upon a Sunday while upon an errand forbidden by law, for in that case the travelers would be trespassers, having no right to enter upon the road. The deceased, however, were not trespassers upon the boat; on the contrary, they were there upon the express solicitation and permission of the defendants. The steamboat had not yet started on the fulfillment of that contract which it is claimed was illegal, but was lying in the slip. The defendants themselves were, on their own theory, in violation of the law, but the idea is the same. They invited and induced the deceased to come on their boat, they failed to perform their contract to convey them to Staten Island, and to this extent the statute gives them protection. But to hold that they had the right to imperil the lives of passengers by gross negligence, such as was found by the jury to have existed, is a proposition which strikes the mind at once as unreasonable. It would seem useless to look for authorities on this point; it is enough “ to consider the reason of the case, for nothing is law that is not reason ” (2 Ld. Raym., 911).

The defendants say the deceased were not killed by any act of theirs, but died while committing a violation of the law regulating the observance of Sunday. But there was no proof in the case that the deceased were traveling contrary to the provisions of the statute. It is penal in its nature, and should be strictly construed. The fact that a violation has been committed must be established affirmatively by him who claims the protection of the statute.

Landers and his wife were going to Staten Island for the benefit of a sick child, “ that he might have the air.” This was clearly a work of necessity, and duty on the part of the parents. Kelly and Madden, it is contended, were on a pleasure excursion, but it was also for the purpose of recreation and rest, and our courts have not yet decided that such rest is unnecessary to the overworked laborer. What is or is not a work of necessity or charity should be determined by the circumstances of each case. The evident object of the statute was to prevent the day from being employed in servile work, which is exhausting to the body, or in merely idle pastime subversive of that order, thrift and economy of health and substance which is necessary to the preservation of society. It was never intended to prohibit such a use of the day as would be conducive to the health and necessary recreation of the citizen.

“ Acts not interfering with the benevolent design of the Sabbath, by disturbing and hindering those who for themselves and their families desire to enjoy and improve it, are not prohibited by the statute ” (Smith v. Wilcox, 24 N. Y., 353).

“When parties desire to bring a case within the statutory prohibition, they should produce satisfactory evidence that the facts are such as to make the statute applicable, and not to leave to mere inference what should be established by direct proof, where the intent is to take away a common law right” (Miller v. Roessler, 4 E. D. Smith, 234).

The proof on the part of defendants that any violation had been committed by the deceased, was, to make the most of it, only inferential.

Thus far I have examined the only points of error which were suggested, and those but briefly, on the argument.

It is difficult to say what other errors, if any, might have been urged as a cause for reversal. It is a common practice upon the argument of an appeal to rely entirely upon one or two salient points. One good reason for a reversal is sufficient. These cases are crowded from beginning to end with objections and exceptions, and, while I desire in all fairness, to examine all questions of real substance and not of mere form, that are presented, I am brought to the conclusion, after a careful reading of the testimony and charge of the court, that no injustice has been done to the defendants, either by the court or jury. The weight of testimony was chiefly, to the effect that the engineer in charge was wanting in that skill and care which the law requires of one acting in his capacity, and that the defendants were equally negligent, in not providing such a boat and the requisite skill to manage the same, as their duty to the public wisely exacts. Whatever difference of opinion there may be on these points, the testimony was before the jury pro and con, and their verdict should be final.

.As to the questions of law presented by the charge-of the court, and the requests submitted by defendants’ counsel, the cases present some distinguishing features. In the Landers case the special defense set up was that the Westfield at the time of the accident was “navigating the navigable waters of the United States,” and that the damage and injury of which the plaintiff complains did not happen, through any neglect or failure to comply with the provisions of the acts of Congress for the better security of life on board of vessels, propelled in whole or in part by steam, nor through any known defect or imperfection of the steaming apparatus or hull of the said steamer West-field.

At the close of the plaintiffs’ case defendants’ counsel moved to dismiss the complaint. The motion was denied, and the defendants then gave in evidence among other acts the act of Congress approved February 28, 1871, also the certificate of enrollment of the Westfield, and the license of the Westfield.

The United States inspector, Mathews, who examined the boiler of the Westfield, and gave the certificate required by section 43 of the act of February 28, 1871, testified that he set the valve at twenty-seven pounds, and that the certificate allowed the steamboat to carry twenty-five pounds of steam.

The engineer says that a short time before the explosion, but we cannot say how long before, there was on the boiler about twenty-six and a half pounds of steam, “it wasn’t quite twenty-seven.”

The theory of the defense is, that the right to recover damages conferred by section 43 of the act of Congress does not inure to the personal representatives of the deceased under, our statute, unless the injury complained of resulted from defendants’ negligence.

It was charged by the court, that if the explosion was caused by the steam being permitted to accumulate above twenty-five pounds per square inch, and the death of Landers was occasioned thereby, the defendants were guilty of negligence.

I think the charge correct. That the act in question, was passed to guard against certain well known perils in steam navigation, is manifested by its very title— “To provide for the better security of lives,” &c.

Steam as a motive power cannot be safely used, except by adjusting the amount of pressure with reference to the capacity of the boiler to resist that pressure. The ascertainment and adjustment of the relatively safe proportions of pressure and power of resistance, are provided for by an official inspection and certification in the case of every steam vessel before she can be licensed, registered and enrolled; and from time to time thereafter while she continues in. service. The amount of steam which the Westfield could safely carry had been ascertained and certified by such official inspection. It is evident that the boiler would grow weaker with use, not stronger. It ought prudently to carry even less steam than was permitted by the certificate, it could not safely be trusted to carry more ; and for that reason the act of Congress declared that any one sustaining damage through any failure to comply with the provisions of the act, should have a right of action against the owners of the vessel and the master thereof.

The Westfield carried steam beyond the limit in the certificate. This point was conceded, and the jury found as a fact that the explosion and death were caused thereby. Did the court err in instructing the jury that carrying more than the limit prescribed by the certificate was negligence in contemplation of law ? We think not. The act of Congress warns all navigators against the danger of carrying an excess of steam; enjoins as a precaution against that danger not to carry steam beyond the limit in the inspector’s certificate, and declares the liability of owners who neglect or fail to observe that precaution..

When a statute warns against a specific danger and enjoins the observance of a specific precaution against the danger, the neglect or failure to observe that precaution, must be negligence per se (Johnson v. Bruner, 61 Penn., 58). It is this principle which underlies all governmental power and authority. It is the matured and well considered judgment of the law-making power of the State, and should not be open to question by any private individual or corporation.

In the other cases, this precise question is not presented. The act of Congress, though pleaded, was not formally introduced in evidence, and the cases went to the jury upon the general question of negligence without reference to the act.

I am not aware that in effect this makes any distinguishing feature or necessitates the application of a different rule. The act of Congress is a public act, of which the courts of this State are bound to take notice ; but if the rule were otherwise, we think the question of negligence was fairly submitted to the jury.

The only point made, was as to the degree of skill and care imposed upon the defendants. They insist that they were bound to exercise ordinary skill and care only, while the court charged that they were bound to use the utmost care and diligence peculiar to cautious persons in respect to the boat,'boiler,.the use and control of the steamboat, and to do all that human skill and foresight, and the application of known scientific methods and appliances would have enabled them to do, for the protection of the passenger.

It would be an interminable labor to review in detail' the special requests to charge-made in these cases, as the discussion of each would practically involve a re-discussion of the entire law of the "case. In the Madden case the requests are twenty-seven in number, in the Kelly case, thirty-three, and in the Landers case, sixty-one. It would be strange, indeed, if amid such a mass of propositions involving mixed questions of law and fact, isolated expressions were not found to which ingenious counsel could take exception. The charge of the court, taken as a whole, was fair fin'd liberal to the defendants. In the Madden case the learned judge said to the jury—

“You will ask yourselves whether there was in that respect a faithful, skillful and reasonable performance of duty ; in other words, whether there was negligence.” And in the Kelly case, upon the special request of defendants’ counsel: “If the jury find from the evidence that the defendants, in furnishing their boat with the boiler in question, and in furnishing, equipping and operating their boat, exercised the utmost care and skill, the plaintiff cannot recover, and the defendants are entitled to their verdict.”

One other point perhaps worthy of attention is made in the Madden and Kelly cases, viz : that the defendants were not liable for any violation of the act of Congress so often before referred to. The court did, in effect, charge-as requested. The cases were submitted to the jury upon the liability of the defendants at common law, without reference to the act of Congress, which, it was declared, was simply in aid of the common law. It is sufficient to say that this was presented in the light of the rule established in Caldwell v. New Jersey Steamboat Co. (47 N. Y., 282).

After a patient review of this branch of the case, we can discover no substantial error. The judgments appealed from, and the orders denying the motions for new trials, should be affirmed, with costs.

Thompson, J., concurred.

Judgments accordingly. 
      
       Present, Thompson, Ch. J., and McCue, J.
     