
    FLANNERY et al. v. CORNELL STEAMBOAT CO.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Collision—Absence of Lookout.
    In an action for damages caused by a collision between two steam tugs, plaintiff’s tug is not chargeable with negligence because of the absence of the lookout, where the pilot, in time to avoid the accident, observed defendant’s tug and signaled his intention to pass to the right, as required by the rules of navigation, but defendant’s tug failed to observe such signals or to give any signals as to her intention.
    Appeal from circuit court, Kings county.
    Action by William H. Flannery and Thomas Flannery against the Cornell Steamboat Company to recover damages to plaintiffs’ steam tug caused by collision with defendant’s steam tug. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals.
    Affirmed.
    Argued before DYKMAK and PRATT, JJ.
    Benedict & Benedict, for appellant.
    Stewart & Macklin, for respondents.
   DYKMAK, J.

This action was brought by the plaintiffs as owners of the steam tug William H. Bentley, against the Cornell Steamboat Company, owner of the steam tug Coe E. Young, to recover the damages sustained by the Bentley while in collision with the Young on the 5th day of September, 1893. On the day of the accident, the Bentley started from the Wallabout in Brooklyn, about half past 7 o’clock in the morning, bound down and across the East river to Pier No. 6, on the New York side. She proceeded at half speed. There was a large steamer coming up the East river, heading towards the New York side, and when the steamer 'crossed the bows of the Bentley it was between the Bentley and the Young, which was coming up the river, against the tide, with a canal boat loaded with coal on her port side. When the captain of the Bentley first sighted the Young the two tugs were about head and head, and he put his wheel a-port, and blew one whistle to indicate that he was going to the right of the Young, and that the pilot of the Young should port his wheel and go to the right of the Bentley, so that each vessel should pass the other port to port. At that time the two tugs were about 250 or 300 feet apart. No answer was made from the Young to the signal whistle of the Bentley, and in a few seconds the captain of the Bentley gave a second signal of one whistle also. "During all this time the Bentley had been going to the right, in accordance with her signal, b.ut, when no answer was received to the second signal of one whistle, her captain blew two or three larger signals, as a warning to the Young to keep clear. Instead of stopping or putting his wheel to the larboard and turning his vessel towards "the Brooklyn side so as to escape the collision, the captain of the Young put his wheel a-starboard, and thereby turned his vessel to the left, and the canal boat collided, and struck her about midships, on her port side.

The rule of navigation for steam vessels applicable to this case is as follows:

“When steamers are approaching each othei\head and head, or nearly so, it shall be the duty of each steamer to pass to the right or port side of the other, and the pilot of either steamer may be first in determining, to pursue this course, and thereupon shall give, as a signal of his intention, one short and distinct blast of his steam whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam whistle, and thereupon such steamers shall pass to the right or port side of each other. But if the course of such steamers is so far on the starboard of each other as not to be considered by pilots as meeting head and head, or nearly so, the pilot so first deciding shall immediately give two short and distinct blasts of his steam whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam whistle, and they shall pass to the left, or on the starboard side of each other.”

Under the circumstances disclosed by the evidence and found by the jury, as we must assume, the conduct of the captain of the Bentley was in accordance with that rule. It was the duty of each vessel to pass to the right, and either one might be first in determining to pursue that course, and when he had so determined it was his duty to signal his intention by giving one short and distinct blast of his whistle. That was all done by the captain of the Bentley, and the pilot of the Young gave no signal, and there is no excuse for such inaction. If for any reason he could not go to the right, or if in his opinion the course of the steamer was such as not to be considered by pilots as meeting head and head, or nearly so, then he knew that he was the first pilot to so decide, and it was his duty immediately to give two short and distinct blasts of his steam whistle, as a notice of his intention to pass to the left. If he could have done neither, he could have reversed his engine, and his headway soon would have been arrested by the current, which was against him. Without any effort in either of the directions indicated, his action had been to turn his vessel towards the Bentley, and expedite the collision.

At the close of the testimony on the part of the plaintiff, the counsel for the defendant moved to dismiss the complaint on the ground of the absence of the lookout on the Bentley, and the denial of that motion is assigned for error. A lookout is a competent person, stationed for that purpose on the forward part of the vessel. His presence there is a wise precaution, and in many cases his absence would manifest a want of proper care; but where the absence of a lookout contributes nothing to the accident, no liability will be incurred therefor. It is the office of a lookout to discover dangers which cannot be so quickly discovered by a pilot, who is engaged in navigating the vessel, but if the peril is seen in time by the navigator, or any other person, in time to take measures for its avoidance, no charge of negligence can be based upon the absence of a lookout. As a lookout is by no means the only precaution adopted by a prudent navigator to guard against danger, so his presence is not indispensable as a < shield against the imputation of negligence. The Farragut, 10 Wall. 334. The foregoing principles, applied to this case, exculpate the navigators of the Bentley from the charge of negligence. The Young was discovered by the captain of the Bentley as soon as she was uncovered by the big steamer, and came in sight behind her stern. A lookout could not have seen her sooner, and there was ample time for the avoidance of the collision if the pilot of the Young had observed the Bentley and obeyed the rules of navigation as the captain of the Bentley did. It may as well be stated here that, under the charge of the trial judge, we must assume that the jury believed the testimony on the part of the plaintiffs, and disbelieved the testimony on the part of the defendant. We therefore take the facts as the jury have found them. The absence of a lookout, therefore, went to the jury, like all the other facts and circumstances in the case, upon the question of negligence, and the motion for a dismissal was properly denied. The same question was raised by a request to charge, which was also properly denied. The counsel for defendant requested the trial judge to charge that the man who blows the whistle has no right to go a-port, but must wait until the signals are understood, but the request was properly denied. We have already stated the proper construction of the rule of navigation to be that the pilot of either steamer may be first in determining to pass to the right when steamers are approaching each other head and head.

The record discloses no errors, and the judgment and order denying a motion for a new trial must be affirmed, with costs.  