Delafield. Union Ferry Company.

THIS was an action for damages for injuries to a canal boat belonging to the plaintiffs, (The Ogden,) by a steam ferry boat belonging to the defendants, (The Abbie,) plying between New York and Brooklyn in January, 1857. The collision occurred at the former place. The river was at that time full of ice. The plaintiffs' vessel was deeply laden, and had sacks of salt on deck. Her captain attempted to take her across the slip into which the vessel of the defendants always ran, and where the ferry was, in order to moor his vessel under the lee of some wharf to protect her from the floating ice. It was after the sunset, which was one minute before five o'clock on that day. The vessel of the defendants was fully lighted; it had a pilot at the bow, and a look out along side of him. On the trial, witnesses on behalf of the plaintiffs testified that it was so light at the time that the vessel of the defendants could be seen at Brooklyn from the New York side without regard to her lights; that on her approach her pilot could be seen from the deck of the canal boat, and one witness stated that he could see the passengers in the ferry boat as plainly as he saw "the faces of the jury." The captain of the canal boat testified that immediately after the collision took place he went to look for men to haul off his deck load, which was twenty minutes after six. One witness examined for the plaintiffs, (Gillen,) the pilot of the ferry boat, (Shepherd,) the look out, (Cole,) a bridge man, (Brown,) and a carpenter, (Goodrich,) testified that it was at night. The pilot testified that he thought the canal boat to be a mass of ice, and as soon as he discovered his mistake he used every means to avoid a collision, he immediately stopped his engine and reversed the wheels, to back the ferry boat. Some of the witnesses also stated the time of the evening by the clock. No light was shown on board of the canal boat. Her captain saw the ferry boat from the time she left the Brooklyn side, but gave no warning, and did not do any thing to avoid a collision.

Upon the trial, the counsel for the defendants moved to

Delafield v. Union Ferry Company.

dismiss the complaint upon two grounds: First, that there was no evidence of negligence or carelessness on the part of the defendants; and second, that the evidence showed negligence on the part of the plaintiffs, causing or contributing to the injury.

The court denied the motion, to which the defendants' counsel excepted. The jury found a verdict for the plaintiffs of $3371.80. A motion was subsequently made for a new trial upon a case and denied. Judgment was entered upon such verdict, from which, and from the order denying a new trial an appeal was taken.

M. S. Bidwell, for appellants.

G. H. Forster, for respondents.

BY THE COURT, GARVIN, J. In the afternoon of the 17th of January, 1857, a collision took place between the plaintiffs' canal boat "Ogden," and the defendants' steam ferry boat "Abbie," at pier No. 36, East river, on the New York side. This action is brought to recover damages for the injury done to the "Ogden" and her cargo. Upon the trial, the plaintiffs had a verdict for a little over $3000. The only material question before us arose upon the denial by the court of the motion to dismiss the complaint on two grounds: (1.) That there was no evidence of negligence on the part of the defendants; and (2.) That the evidence showed negligence on the part of the plaintiffs, causing or contributing to the injury. As rules of law, both these propositions will be conceded; but whether the facts before the court were of such a character as to show negligence on the part of the plaintiffs, and a want of evidence showing negligence on the part of the defendants, are the questions before us. If it had been certain that the collision took place between the two boats in open day, without any intervening object to prevent a full and clear view of the canal boat by those on the steamboat, then the defendants ROB. V.

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Delafield. Union Ferry Company.

would, beyond all doubt, have been guilty of negligence, and such negligence as to have entitled the plaintiffs to a recovery for such damages as they proved, provided they were free from negligence themselves. But this question, as to whether it was dark or light, was not so clearly made out, upon the proofs, as to warrant the court in pronouncing upon the case in favor of the defendants. The facts did not show a case of contributing negligence against the plaintiffs, unless it was so dark that the defendants' employees could not see the canal boat; therefore it was entirely proper that the judge, at the trial, should submit that with other questions of fact to the jury. Upon their findings the cause turned. We must assume the court charged, if it was so light that the defendants' servants could see the canal boat lying across the entrance to the slip in time to have stopped the steamer before she struck the plaintiffs' boat, then the defendants were guilty of negligence, and the plaintiffs were entitled to recover. The jury must have found it was light enough to see the canal boat in time to have stopped her. Certainly, a collision under such circumstances would show a want of ordinary care and caution on the part of the defendants, and it is difficult to see, upon such a finding, why the plaintiffs ought not to recover. The plaintiffs were not negligent in not having a light on their boat, because under this state of facts it was light enough to see, and a light on the canal boat was unnecessary.

In this view of the case the verdict should be sustained, provided there is evidence in the case to support it. In cases of this description, where there is conflicting evidence, the question of negligence as to both parties is one of fact for the jury. (Ernst v. The Hudson River Railroad Co., 35 N. Y. Rep. 9.) It was in proof on the part of the plaintiffs, that it was so light that the ferry boat could be seen across the river, on the Brooklyn side, before she left her dock to come over, without reference to her lights; that the canal boat was being moored to get under lee from the ice, which

Delafield v. Union Ferry Company.

was coming down so strong that it would be likely to run the canal boat down; that from the canal boat the pilot could be seen by the light of day; that it was so light the passengers could be counted and seen as plainly, one of the witnesses said, as he could see the faces of the jury. It is true there was conflicting evidence given' on the part of the defendants; but the questions of fact were submitted to the jury, and their verdict is controlling with us. We do not think the exceptions taken to the ruling made by the court, in denying the motion to dismiss the complaint, or in excluding evidence, are either of them well taken.

The judgment and order should be affirmed, with costs.

ROBERTSON, Ch. J. concurred.

McCUNN, J. I regret I am compelled to dissent in this case. The action was brought to recover damages for injuries sustained by the plaintiffs, from a collision between their canal boat (Ogden) and the defendants' steam ferry boat (Abbie) on the 17th of January, 1857. The complaint alleges that the plaintiffs were not guilty of negligence, and that they in no way contributed to the collision; that said collision was caused wholly by the negligence of the defendants' ferry boat. The rule is well settled, that before the plaintiffs can recover, these allgations must be clearly established on the trial below. The answer denies the allegations of the complaint, and insists that the accident was caused by the carelessness of the plaintiffs; so that, the two important questions that present themselves for our consideration, are: Was there negligence on the part of the plaintiffs? If not, was there such a degree of negligence on the part of the defendants, as to warrant the court in saying that they contributed to the accident? I shall endeavor to show, from the testimony, gross negligence on the part of the plaintiffs, and the entire want of negligence on the part of the defendants; and that consequently, on both of these grounds, the learned judge below was not

Delafield. Union Ferry Company.

warranted in allowing either of these questions to go to the jury, but should have granted a nonsuit.

First. As to the plaintiffs' negligence. The slip which Kain (the plaintiffs' captain) attempted to cross, was a place which the defendants' steam ferry boats were constantly entering and leaving; this was well known to him, because he had been lying on the south side of the ferry pier for some time previous, and knew the regulations of the boats as to their time of running. It is also established, that his attempt to haul the canal boat across the ferry slip, and across the track of the steam ferry boats, was in the night, after sunset, and that in so doing he had no signal lights on his boats. His is the testimony of the plaintiffs' witnesses. The witnesses testify that the night was a dark one; it must be presumed, therefore, that the captain of the canal boat knew the peril and imprudence of thus using his boat in the darkness, for, when he commenced hauling, it is in evidence that he told the men to hurry, for fear the ferry boat would come on him.

The sun set on that day at one minute before five o'clock; a time when darkness almost immediately follows. Kain (the captain) says it was twenty minutes past six when he. ran to look for men to take off the deck load, which was instantly after the boat struck; it is, therefore, certain that he moved his boat after sunset and after dark. Moreover, it is in evidence, on the part of the plaintiffs, that it is unusual for vessels to haul across slips after dark. Yet, in the face of all this knowledge on the part of the plaintiffs' captain, he not only took the unusual course of hauling this loaded barge across the slip after dark, but did so without displaying any light of any kind to the approaching ferry boat; although the navigation laws require all shipping moving in the harbor or lying in the stream to hoist at sundown, and keep hoisted until sunrise, signal lights.

Under these circumstances, the plaintiffs, in hauling their boat across the slip without displaying the usual signals, were guilty of gross carelessness and bad management; but