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her failure to carry the proper lights; and on the part of the defendant to show that it was caused by the mismanagement and neglect of the Vanderbilt. The court, at the conclusion of the case, nonsuited the plaintiffs, on the ground that no negligence had been shown on the part of the defendant; and especially that the principal ground of negligence on the part of the defendant relied upon by the plaintiffs, viz., that the Yosemite did not carry the proper lights, was not true,—the court holding that she did carry at the time the lights required.
As the case turns upon the question of lights, it is only necessary, in addition to the foregoing facts, to state the rules, as to lights upon steamvessels, prescribed by section 4233 of the Revised Statutes of the United States, so far as material here:
“Rule 1. Every steam-vessel which is under sail, and not under steam, shall be considered a sail-vessel; and every steam-vessel which is under steam, whether under sail or not, shall be considered a steam-vessel.
“Rule 2. The lights mentioned in the following rules, and no others, shall be carried in all weathers, between sunset and sunrise.
“Rule 3. All ocean-going steamers, and steamers carrying sail, shall, when under way, carry (a) at the foremast head a bright white light, of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, and so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam, on either side; (b) on the starboard side a green light of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam, on the starboard side; (c) on the port side, a red light of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam, on the port side. The green and red lights shall be fitted with inboard screens, projecting at least three feet forward from the lights, so as to prevent them from being seen across the bow.
"Rule 4. Steam-vessels, when towing other vessels, shall carry two bright white mast-head lights, vertically, in addition to their side lights, so as to distinguish them from other steam-vessels. Each of these mast-head lights shall be of the same character and construction as the mast-head lights prescribed by rule 3.
“Rule 5. All steam-vessels, other than ocean-going steamers and steamers carrying sail, shall, when under way, carry, on the starboard and port sides, lights of the same character and construction, and in the same position, as are prescribed for side lights by rule 3, except in the case provided in rule 6.
“Rule 6. River steamers, navigating waters flowing into the Gulf of Mexico, and their tributaries, shall carry the following lights, namely: One red light on the outboard side of the port smoke-pipe, and one green light on the outboard side of the starboard smoke-pipe. Such lights shall show both forward and abeam, on their respective sides.
“Rule 7. All coasting steam-vessels, and steam-vessels other than ferryboats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers, or other inland waters of the United States, except those mentioned in rule 6, shall carry the red and green lights as prescribed for ocean-going steamers, and, in addition thereto, a central range of two white lights; the after-light being carried at an elevation of at least fifteen feet above the light at the head of the vessel. The head-light shall be so constructed as to show a good light through twenty points of the compass, namely, from right ahead to two points abaft the beam, on either side of the vessel; and the after-light, so as to show all around the horizon. The lights for ferry-boats shall be regulated by such rules as the board of supervising inspectors of steam-vessels shall prescribe.”
P. Cantine and Hallock, Jennings & Chase, for appellants, Chase and another, Ex’rs, etc. Luther R. Marsh, for respondent, Belden.
ANDREWS, J. The plaintiffs were nonsuited on the ground that the Yosemite, at the time of the collision, had the proper lights, and that no negligence was imputable to her on any other ground. This ruling was affirmed by the general term.
The right of the defendant to maintain this judgment must, we think, turn upon the correctness of the ruling that the Yosemite carried the proper lights. The counsel for the defendant, while strenuously maintaining that the Yosemite had the proper lights, also insists that, if the court below erred in this respect, nevertheless the nonsuit should be affirmed on the ground that the collision did not result from this omission of duty, but was solely attributable to the mismanagement of the Vanderbilt. The question whether there was any negligence on the part of the Vanderbilt, which would bar a recovery, was not considered or decided on the trial. The nonsuit was put exclusively upon the absence of negligence on the part of the Yosemite, and was affirmed on that ground by the general term. If the ruling on the question of lights was erroneous, the case should, we think, be sent back for a rew trial, on which the question as to the negligence of the Vanderbilt can be presented and considered.
The question whether the Yosemite, at the time of the collision, carried the proper lights, depends upon the construction of the rules for preventing collisions on water, prescribed in tit. 48, c. 5, Rev. St. U. S., as applied to the Yosemite while navigating the Hudson river. The rules prescribing the lights to be carried by steam-vessels divides such vessels into three classes: First, “ocean-going steamers, and steamers carrying sail,” embraced in rule 3; second, "river steamers, navigating waters flowing into the Gulf of Mexico, and their tributaries,” embraced in rule 6; and, third, “all coasting vessels, and vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers or other inland waters of the United States, except those mentioned in rule 6,” embraced in rule 7. In addition, rule 4 prescribes the lights to be carried by steam-vessels when towing other vessels, which appears to be of general application. The Yosemite, at the time of the collision, had a green light on her starboard side, a red light on her port side, and at the foremast head a white light, being the light prescribed for “ocean-going steamers, and steamers carrying sail."
It is insisted on the part of the defendant that the Yosemite was “an oceangoing steamer, and a steamer carrying sail,” and was bound to carry the lights prescribed in rule 3, whether navigating the ocean or inland waters. The counsel for the plaintiff, however, denies that the Yosemite was, at the time of the collision, “an ocean-going steamer, and a steamer carrying sail," within the meaning of rule 3, and insists that the words “ocean-going steamer, and a steamer carrying sail,” are descriptive only of steamers while traversing the ocean, and when on the high seas; and that every steamer, except those mentioned in rule 6, while navigating inland waters, is bound to carry a “central range of two white lights," as prescribed in rule 7, whatever may be its general character as an ocean or inland vessel. We deem it unnecessary to decide this general question. The Yosemite was, we think, in legal character and by proper nomenclature, a “coasting vessel, and was therefore, within the express terms of rule 7, bound to carry the central range of lights prescribed in that rule. Even if this may not be absolutely true of the Yosemite in all situations, it was nevertheless true of her when navigating inland waters. If the Yosemite was a coasting vessel, it becomes quite unimportant to determine the true construction of the limiting clauses in rule 7.
The rule, in express words, applies to “all coasting steam-yessels,” and plainly no vessels of that character are, by the subsequent language, excepted from the obligation to carry the central range lights. The legal character of a vessel is to be determined by reference to the statute and the ship's papers. The Yosemite was a yacht used and employed exclusively as a pleasure vessel, and designed as a model of naval architecture, and is so described in her license. By section 1,.c. 141, of the United States Statutes of 1848, the secretary of the treasury was authorized to cause yachts, "used and employed exclusively as pleasure vessels, and designed as models of naval architecture,” if entitled to be enrolled as American vessels, to be licensed “to proceed from port to port of the United States, without entering or clearing at the custom house.” This statute was amended by section 1, c. 170, of the United States Statute of 1870, by inserting after the words “United States," the words “and by sea to foreign ports;" and the original statute, as amended by the act of 1870, now stands as section 4214 of the Revised Statutes.
It will be observed that under the statute of 1848 yachts licensed thereunder were exclusively coasting vessels. By the amendment they might have a double character, viz., that of coasting vessels, and vessels entitled to go upon the seas to foreign ports. The Yosemite, at the time of the collision, was enrolled at the port of New York, and her certificate of enrollment recited that it was given in conformity to title 50 of the United States Revised Statutes, entitled “Regulations of Vessels in Domestic Commerce." She was also licensed, and her license recites that it was granted in pursuance of chapter 5, tit. 48, entitled “Regulations of Commerce and Navigation.” By reference to title 50 of the United States Revised Statutes, under which the Yosemite was enrolled, it will be found that it relates exclusively to coasting and fishing vessels. The title next preceding, viz., title 49, is entitled “Regulations of Vessels in Foreign Commerce." It thus appears that the Yosemite was enrolled under the statute relating to coasting vessels, and her license was a coasting license, with the added privilege of going by sea to foreign ports. It does not seem to admit of reasonable doubt, having reference to the statute and to the enrollment and license, that the Yosemite, while navigating the Hudson river, was navigating under her license in the character of a coasting vessel. This brought her within the operation of rule 7, and she was therefore in fault in not carrying the lights prescribed by that rule.
If the collision had happened upon the high seas, another question would be presented. In the case of The Glaucus, which came before LOWELL, J., in the United States district court of Massachusetts, referred to in a note in Parsons on Shipping and Admiralty, (volume 1, p. 562,) which arose under the act of 1866, (14 U. S. St. at Large, c. 234, § 11,) of which section 4233 of the Revised Statutes is, in substance, a re-enactment, it appeared that the Glaucus, a steamer bound from New York to Boston, came into collision with a sailing vessel on Long Island sound. The steamer had, in addition to her two side lights, two white lights, one at her bow and one at her masthead. It was contended that she should have had only one white light. LOWELL, J., speaking of the act of 1866, said: “Its language does not seem to be very happily chosen. It puts ocean steamers and steamers carrying sail in one class, with one sort of light, and coasting steamers in another, with a different sort, whereas most of the coasting steamers on the Atlantic coast are both ocean going and carrying sail, so that it may sometimes be difficult for the persons concerned to know to which order they belong.
The point, it is said, was not decided. See. The Continental, 14 Wall. 345. It is not necessary to decide the point in this case. It is decisive here that the Yose-" mite, at the time of the collision, was navigating inland waters under a coasting license, and that, by the explicit language of rule 7, she was bound to carry the central range lights.
The judgment should be reverse, and a new trial granted.
(All concur.) (104 N. Y. 58)
PEOPLE 0. NEW YORK, L. E. & W. R. Co.1
(Court of Appeals of New York. January 18, 1887.) 1. RAILROAD COMPANIES OBLIGATION TO PROVIDE STATION ACCOMMODATION - MAN
A railroad company is under no obligation as a cominon carrier, either at common law or by implication under the New York general railroad act, (Laws N. Y. 1850, c. 140,) to provide warehouses for freight offered it, or depots for passengers waiting transportation; and mandamus will not lie to compel the construction of a suitable depot building, of sufficient size and capacity to accommodate passengers arriving and departing at a station, as well as such passengers as may be in waiting on ordinary occasions to depart, and of sufficient capacity to accommodate such
quantities of freight as are usually received at such station. 2. SAME-RAILROAD COMMISSIONERS DECISIONS-LAWS N. Y. 1882, Ch. 353.
The railroad commissioners appointed under Laws N. Y. 1882, c. 353, have no power to compel railroad companies to carry into effect the decisions of the commission, nor is there any power vested in the courts for that purpose. Appeal from an order of the general term of the supreme court for the Fifth department, affirming order of the special term directing the issuance of a peremptory mandamus, compelling the defendant to erect and provide a suitable station-house or houses, for freight and passengers, at the village of Hamburgh, Erie county, New York.
Sprague, Morey & Sprague, for appellant, New York, L. E. & W. R. Co.
Laws N. Y. 1850, c. 140, does not impose upon the defendant the obligation to erect a station-house or warehouse at an intermediate station between its termini, such as that at Hamburgh. Mandamus can only issue on behalf of the people to compel the performance of a specific duty clearly imposed by law. Where the writ is directed to a corporation to compel it to perform its duty as a common carrier, the duty sought to be enforced must be essentially a part of its corporate functions, so that a refusal to perform it would, if persisted in, justify a forfeiture of its charter, and the writ will not lie to compel the performance of an act which lies within the discretion of the directors. There does not exist such a complete legal right on the part of the people, and such a clear legal duty on the part of the defendant, to construct a station building at Hamburgh, as to justify the issuing of the writ. 1 Redf. Rys. 633; 2 Redf. Rys. 249; People v. Supervisors Greene Co., 64 N. Y. 600; People v. Railway Co., 63 How. Pr. 291; High, Extr. Rem. SS 315–322.
D. O'Brien, Atty. Gen., for the People.
A railroad company is a private corporation, in the sense that the owner. ship of its property is private. But it is a public corporation, in the sense that the user of its property is public. It holds its property and franchises in trust for the public use. The functions performed by such corporations are those of the state. Though the ownership is private, the use is public. Olcott v. Supervisors, 16 Wall. 678, 694, 695; Blood good v. Mohawk & H.R. Co., 18 Wend. 9; Worcester v. Western Railroad Corp., 4 Metc. 566; Talcott v. Pine Grove, 1 Flip. 120; Gen. R. R. Act 1840, c. 140, § 1.
It is because of this trust for public use, upon which railroad franchises are held, that the right of these private corporations to exercise sovereign powers has been sustained. Blood good v. Mohawk & H. R. Co., 18 Wend. 9; Worcester v. Western Railroad Corp., 4 Metc. 566; Olcott v. Supervisors, 16 Wall. 678, 694, 695; Talcott v. Pine Grove, 1 Flip. 120; S. C. 19 Wall. 666; Messenger v. Railroad Co., 36 N. J. Law, 407, 413.
Reversing 40 Hun, 570.
Accommodations for passengers, freight, and general business are necessary to accomplish the object for which the corporation was formed. The duty of maintaining the road for the benefit of the public is mandatory, and this court has the power to compel the company to maintain and operate its road in such manner as to carry out the object for which it was incorporated. Farmers' L. & T. Co. v. Henning, 17 Amer. Law Reg. (Ed. 1878) 266, (N. S.;) Bloodgood v. Mohawk & H. R. Co., 18 Wend. 21; People v. New York Cent. & H. R. R. Co., 28 Hun, 548, 550. It has been held that a railroad company can be compelled by mandamus to operate its entire road for the use of the public. People v. Albany & V. R. Co., 24 N. Y. 261. As common carriers, it is the duty of railroad companies to have a suitable place for the receipt of goods. Before they can be relieved of the liability of common carriers, notice must be given to the consignee of property, and a reasonable time allowed for removal of the same. Sherman v. Hudson R. R. Co., 64 N. Y. 254; Fenner v. Buffalo & S. L. R. Co., 44 N. Y. 505; Hedges v. Hudson R. R. Co., 49 N. Y. 223. The liability as common carrier has been held to apply to personal baggage. Rogers v. Long I. R. Co., 1 Thomp. &C. 396; affirmed, 56 N. Y. 620.
The railroad company is a creature of the legislature, and is subject to the direction of the court, and mandamus has been recognized as the appropriate remedy to compel railroad companies to perform duties owing to the public. Mandamus has been awarded to compel a company to complete its road, (Trust Co. v. Railroad Co., 17 Amer. Law Reg. [N. s.] 266;) to compel a company to so grade its tracks as to make crossings on a highway convenient and useful, (People v. Dutchess & C. R. Co., 58 Ñ. Y. 152;) to compel a railroad company to build a bridge, (People v. Railroad Co., 70 N. Y.569; State v. Gorham, 37 Me. 451; Cambridge v. Railroad Co., 7 Metc. 70;) to compel a company to construct and maintain fences and guard, (People v. Railroad Co., 14 Hun, 371; S. C. 76 N. Y. 294;) to compel it to construct its road across streams so as not to interfere with navigation, (State v. Railroad Co., 9 Rich. [S. C.] 247;) to compel the company to deliver to a particular elevator grain consigned thereto in bulk, (Railroad Co. v. People, 56 111. 365;) to compel the company to run daily trains, (In re New Brunswick & C. Ry. Co., 1 Pugsl. & B. 667;) to compel the running of trains to the terminus of the road, (State v. Railroad Co., 29 Conn.538;) to compel a company to operate its road as one continuous line, (Railroad Co. v. Hall, 91 U.S.
343; Hall v. Union Pac. R. Co., 3 Dill. 515; U.S. v. Union Pac. R. Co., 4 Dill. 479;) to compel it to re-establish an abandoned station, (State v. Railroad Co., 37 Conn. 154;) to compel the replacement of a track taken up in violation of its charter, (King v. Railroad Co., 2 Barn. & Ald. 646; People v. Rome, W. &: 0. R. CO., 8 N. E. Rep. 369;) to compel a company to repair and construct a bridge in conformity with its charter, (State v. Wilmington Bridge Co., 3 Har. [Del.] 312;) to compel a water company to build bridges over its canals, although not required by its charter, (In re Trenton W.P. Co., 20 N.J.Law, 659;) to compel a dock company to maintain a channel, (Reg. v. Bristol Dock Co., 2 Q. B. 64;) to compel a gas company to furnish gas, (People v. Manhattan, etc., Co., 45 Barb. 136; City v. St. Louis Gas-light Co., 70 Mo. 69, 117.)
The writ may issue to compel a corporation to keep a register, and insert therein the names of the stockholders, (Norris v. Irish Land Co., 8 El. & Bl. 525;) to compel a railroad or a canal company to build or repair its road or canal, (People v. Troy & B. R. Co., 37 How. Pr. 427;) to compel a railroad company to receive and transport freight, (People v. New York Cent. & H. R. R. Co., 28 Hun, 543; S.C. 30 Hun, 78;) to compel a railroad company to perform any duty towards the public, (People v. Railroad Co., 24 N. Y. 261, 267, 269; Railroad Com’rs v. Railroad Co., 63 Me. 269; McCoy v. Railroad Co., 13 Fed. Rep. 3, 7, 8; Talcott v. Pine Grove, 1 Flip. 145.) The remedy by mandamus, to compel railroad companies to perform their duties towards the public as