
    Rufus K. Delafield et al., Plaintiffs and Respondents, v. The Union Ferry Company of Brooklyn, Defendants and Appellants.
    1. In an action for damages for injury to property alleged to have been caused, by the negligence of the defendants, it must appear that the plaintiffs’ acts or omissions did not concur or contribute in any degree to the result.
    2. Thus where the plaintiffs’ servants, after nightfall, moved their canal boat from pier to pier, across the mouth of the defendants’ ferry slip, under circumstances malting the attempt somewhat hazardous and liable to delay;
    
      Held, that their negligence must be deemed to have contributed to a collision resulting from the approach of the ferry boat while the canal boat was being moved; and that a verdict in favor of the plaintiffs could not be sustained.
    (Before Moncrief and Monell, J. J.)
    Heard, January 14, 1863;
    decided, January 31, 1863.
    Appeal by the defendants from a judgment in favor of the plaintiffs, entered on a verdict recovered on a trial of the cause before Ch. J. Bosworth and a Jury, on the 9th and 10th days of June, 1862; and from an order denying a new brial.
    ' The plaintiffs, Rufus K. Delafield and George Baxter, sued to recover damages done to their canal boat, which was run into by a ferry boat of the defendants, in the port of Hew York, in January, 1857. The canal boat had been taking in a cargo at the end of the pier on the southerly side of the defendants’ ferry slip. She had completed loading at the close of the afternoon, and was lying across the end of the pier. The captain, immediately after the ferry boat left the slip, commenced to haul his boat across the slip to a berth on the northerly side of Pier 36.
    The following facts were clearly established. Each ferry boat was making three trips an hour. The captain of the canal boat knew that the ferry boats were passing to and fro regularly, and that a ferry boat was soon expected to return, and that vigilance and industry on his part were necessary to enable the canal boat to he drawn across the slip before the ferry boat would return. There was no evidence that those in command of the ferry boat had knowledge or reason to suppose that the canal boat was being hauled, or would be attempted to be hauled, across the slip while the ferry boat was passing from the Brooklyn to the New York side.
    The captain of the canal boat stated that he saw the ferry boat when she left the Brooklyn side, and, of course, knew that she was approaching. But there was no evidence given to show that the men in charge of the ferry boat, had then attention been directed to the fact, when she started from the Brooklyn side, could have seen the canal boat. The men in charge of the ferry boat testified that they did not see the canal boat until within a short distance—two or three boat lengths — when it was too late to avoid the collision. The ferry boat had lights, but the canal boat showed none. At the close of the evidence, the defendants moved to dismiss the complaint, on the ground that there was no evidence of carelessness or negligence on the part of the defendants, and that the evidence showed negligence on the part of the plaintiffs contributing to the injury.
    The Court denied the motion, whereupon the defendants excepted.
    The Court instructed the Jury, among other things, to inquire whether there was any negligence in the management of the canal boat which contributed to produce the injury? “And if there was fault or negligence on his part, in that regard, which contributed to produce the injury, then the plaintiff cannot recover, even though you should find that there was some negligence on the part of the managers of the ferry boat.
    “ In short, to justify you in finding a verdict for the plaintiff, you must be satisfied that the collision was produced by the negligence of the managers of the ferry boat, without any negligence on the part of the captain of the canal boat, which tended to produce the injury.”
    The Jury rendered a verdict in favor of the plaintiffs for the sum of $2,070.26.
    
      
      B. D. Silliman, for defendants, appellants:
    Insisted that the verdict was against the weight of evidence, and cited Wilds v. Hudson River R. R. Co., (24 N. Y. R., 430;) Johnson v. The Same, (20 Id., 76;) Haring v. N. Y. & Erie R. R. Co., (13 Barb., 9;) Munger v Tonawanda R. Co., (4 Comst., 349;) Kelsey v. Barney, (2 Kern., 425;) Griffin v. The Mayor, &c., (5 Seld., 456.)
    
      H. G. De Forest, for plaintiffs, respondents:
    Argued that under the instruction of the Court the Jury had found that the plaintiffs’ servants were not guilty of any negligence contributing to the injury, and that their finding was sustained by the evidence; the rule making a steamer prima facie chargeable with negligence in case of collision being applicable in this case. (Steamer Oregon v. Rocca, 18 How. U. S., 570; N. Y. & Liverpool Steamship Co. v. Rumball, 21 Id., 372; St. John v. Paine, 10 Id., 581; and see general rules of navigation, 1 Pars. Mar. Law, pp. 192, 193, 194, text and notes.) And that the evidence being conflicting, the verdict should not be disturbed; citing Brooks v. Christopher, (5 Duer, 216;) Hazetti v. N. Y. & Harlem R. R. Co., (3 E. D. Smith, 102;) Hoogland v. Wight, (20 How. Pr., 70.)
   By the Court—Moncrief, J.

The law, it is conceded by the learned counsel for the respective parties, is well settled that in an action like the present, claiming damages for injuries received, as .alleged, by the negligence, &c., of a defendant, it must appear that the result complained of. was not in the slightest degree occasioned or contributed toward by the complainant. If it be true that in any degree both parties concurred in the want of care, it must necessarily follow that the accident cannot justly be said to have arisen from the negligence of one or the other solely, and of. course an action cannot be maintained by either party upon the' ground that his adversary caused the damage. (Wilds v. Hudson River R. R. Co., 24 N. Y. R., 430; Ernst v. Same, 24 How. Pr., 97; 8 Com. Bench, N. S., 568-572.) The application of this plain principle requires the plaintiffs in this action to establish that the damages they have sustained not only arose from negligence on the part of the defendants, for such is the distinct averment in their complaint, but also, assuming that fact to have been proven with sufficient clearness to be submitted to the Jury, that the plaintiffs themselves were without fault. The proof of want of due care and caution on the part of the plaintiffs, it seems to me, is most abundantly shown throughout the case. As owners of the canal boat, they or their servants and agents knew of the existence of the ferry, and had ocular demonstration of the frequent, uninterrupted, regular trips o'f the ferry boats. Their boat had no light-; the attempt was made to haul their canal boat by hand from one dock to the other, at dusk or after dark, without notice to the defendants’ servants of their intention, with full knowledge of the tide being against them while hauling the canal boat, and that their act might be attended with some delay. (Steves v. The Oswego & Syracuse R. R. Co., 18 N. Y. R., 422, 426, 427.) It was an unusual step to take at the time of its attempt. Eo prudent man having a just regard for his property, would take such a risk under circumstances requiring no haste; and in case of an exigency, reasonable caution would have led him to make known his intention to cross the entrance to the ferry. Having finished the loading of their canal boat about half-past four or five and at a period of the year when it becomes dark about the latter hour, the boat then lying bow out, at the side of a pier, the plaintiffs made the attempt “a little before or after five” perhaps, to change position and get into line with the opposite pier to which it was intended .the canal boat was to be hauled and fastened. How long a time it required to execute this necessary preliminary movement or at what time the canal boat began her journey across the mouth of the ferry slip, does not appear by any testimony on the part of the plaintiffs; the evidence on the part of the defendants clearly shows the time of the accident to have been about seven o’clock. As the canal boat commenced hauling across the slip immediately after a ferry boat went out of the slip and was within 15 or 20 feet of being out of danger of collision before being struck, it is plain that the plaintiffs began to haul their boat long after dark, against the tide and floating ice, at the risk of having their hawser break and casting adrift, knowing the constant plying to and fro of the ferry boats, without a light on board and without the slightest intimation to the defendants. The captain of the canal boat had full knowledge that at best it was a most hazardous experiment; his testimony clearly establishes this fact. A verdict finding that such conduct was not wanting in due care and prudence and was not contributive to the injury which happened, in my opinion, is plainly against evidence and should be set aside. As it appears that the defendants asked the learned Chief Justice to dismiss the complaint upon the ground now presented as the reason for reversing the judgment, a new trial should be directed, with costs to abide the event of the action. (Brown v. Bradshaw, 1 Duer, 199, 206; Goodyear v. Ogden, 4 Hill, 104; Wright v. Orient Mut. Ins. Co., 6 Bosw., 269-280.)  