
    Sanford Vroman and Ano., App’lts, v. Charles E. Rogers, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889.)
    
    1. Negligence—Conflicting testimony—Question fob the jury.
    The complaint alleges that the defendant, a wharf owner, let to plaintiffs', wharfage for their boat, representing the place to be a safe one. The boat was overturned and damaged. The testimony as to whether such statement was made, and as to the cause of the damage, whether through fault of plaintiffs or defendant, was conflicting. Held, that the question was properly submitted to the jury whether or not defendant’s negligence brought about the injuries complained of.
    3. Same—Request to charge—When properly refused.
    There was testimony tending to show that during the ten days the boat was moored to the dock before the accident, plaintiffs learned the depth of the water, and the condition of the bottom. Held, that a refusal to charge that plaintiffs had a right to rely upon the statement, if any .made, that the place was all right, was proper.
    
      3. Wharves—Liability of wharfinger.
    A wharfinger letting a herth for a boat, and representing it a safe one, does not become an insurer of the boat against damages resulting from negligence of the owners.
    Appeal from a judgment entered on the verdict of a jury at a trial term, and from an order denying a motion for a new trial.
    
      B. Rausch, for pl’ffs and appl’ts; Hubbard & Rushmore, for def’t and resp’t.
   VawWyck, J.

The complaint alleges that defendant, owner of wharf, let to plaintiffs wharfage for their boat, stating to them that the place was safe, with six feet of water at low tide; that the place was unsafe and water less than six feet, and that thereby the boat was overturned, to their damage.

There is testimony tending to show that such statements were and were not made; that the water was more and less than six feet; that the place was safe and unsafe; that the boat was overturned for the want of six feet of water and by the condition of the bottom, and that it was not; that it was overturned by improper loading and its leaky condition. The controversy was fairly submitted to the jury as to whether or not defendant’s negligence brought about the injuries complained of. The verdict was for the defendant, and this appeal is from the judgment thereupon and the order denying motion for new trial.

Plaintiffs’ sole contention on this appeal in the words of their counsel’s brief is that “The question was not one of negligence, and none was shown on the part of plaintiffs or attempted to be shown on the part of defendant;” that it is “ an action to recover for breach of contract;” that defendant, in contracting that this berth was all right for this boat, contracted either that the boat would not touch bottom, or if it did, that the bottom would hold it upright;” that if “the case had been submitted to the jury on the question of contract, the result might have been different.”

We cannot assent to the proposition that the wharf owner, letting a berth for a boat, representing it a safe one, becomes the insurer of the boat against damage, though he shall be found free from negligence and the owner guilty of negligence, causing the injuries to the boat. Barber v. Abendroth, 102 N. Y., 406; 2 N. Y. State Rep., 432; Leary v. Woodruff, 4 Hun, 99.

The court properly refused' to charge that plaintiffs had the right to rely upon the statement that the place was all right. It assumed that such statement had been made, and then there is testimony tending to show that, during the ten days the boat was moored to the dock before the accident, plaintiffs learned the depth of the water and the condition of the bottom, for, during that time, at low tide, the boat touched and rested upon the ground.

Certainly, plaintiffs could not rely upon statements they knew were untrue. It was a question of fact for the jury, and not one of law, whether or not these representations relieved the plaintiffs, in the exercise of ordinary care, from the further use of their' senses to ascertain the safety of the berth. There is testimony from which it might reasonably be inferred that the plaintiffs, before the accident, though after the alleged representations, acquired such information in respect to depth" and conformation of the berth while their boat for ten days at low tide rested upon the ground, as might indicate to them its probable unsafeness. If such indications would impel persons of ordinary prudence and experience, under the circumstances, notwithstanding the representations, to further examine the condition of the berth, then the same duty would rest upon the plaintiffs.

This disposes of the questions raised by appellants.

The judgment and order must be affirmed, with costs.

Osborne, J., concurs.  