Opinion
Argued October 27th
Decided November 22d 1870
John H. Reynolds and W.P. Prentice, for the appellant. Samuel Hand, for the respondent.
The referee before whom this action was tried, found as a conclusion of fact that the injury complained of, was caused by the negligence of the defendant, and that the plaintiff was free from any negligence which contributed to the injury, and this court is concluded by these findings, unless they are unsupported by any evidence, or unless by undisputed evidence the contrary is established. As to the first proposition, that the injury was caused by the defendant's negligence, there was evidence fully justifying the conclusion of the referee. The officers and pilots of the St. John knew before she started from her dock that the plaintiff's tow was grounded and the position it occupied. Instead of pursuing the usual channel, as it had existed for several years, which would have enabled the steamer to pass the plaintiff's tow in safety, on the west side, without any examination to ascertain where the channel was, they directed her eastward, under the impression that a new channel had been formed, which would enable her to pass on the east side. While pursuing this course, she came in contact with some obstacle, which sheered her bow to the west far enough to point her directly toward the plaintiff's tow, and, then becoming unmanageable, she ran into and sunk the plaintiff's barge Buffalo. These leading facts, with the surrounding circumstances detailed at the trial, presented a proper case for the judgment of the referee upon the question of the negligence of the defendant, and we have no power to review his decision. ( Draper v. Stouvenel, 38 N.Y., 219; Fellows v. Northrop, 39 N.Y., 117; Mason v. Lord, 40 N.Y., 476.)
It is claimed, however, that the undisputed evidence shows that the accident was inevitable. This is based upon the idea that the St. John, in the pursuit of a lawful avocation, in a lawful manner, struck the bank, or some other obstacle, and that the highest degree of skill could not have prevented the sheering of the vessel, or the consequent collision. The answer to this position is, that the "sheering" was the immediate consequence of the defendant's negligence, as found by the referee, in running the steamboat out of the accustomed channel. A party cannot avail himself of this defence, who, by his own negligence, gets into a position which renders the accident inevitable. He must exercise care and foresight to prevent reaching a point from which he is unable to extricate himself. There was some evidence tending to show that the St. John came in contact with a "hummock" or sand bar, which had been suddenly formed, was unknown to navigators, and which could not be guarded against, but the evidence on this point was not undisputed, and was far from being satisfactory, and the referee has not found that that fact existed. If it did exist, and was undisputed, the negligence of the defendants in being at that point, would prevent its availability in this action. ( Crockett v. Newton, 18 How. U.S., 581.)
The authorities cited by the learned counsel for the defendant are not in conflict with these views. In the case of the Grace Girdler (7 Wall., 203), the court say: "Inevitable accident is when a vessel is pursuing a lawful avocation, in a lawful manner, using the proper precautions against danger, and an accident occurs." It has been adjudged in this case, that the defendant's vessel was not using proper precautions against danger. So in the case of Fashion (1 Newb. Ad., 8), an inevitable accident is held to be one "where no fault can be found on either side." The only point decided in Kelsey v. Barnes ( 12 N.Y., 425), was that the highest possible care will not be exacted in such a case.
In Steinbach v. Rae (14 How. U.S., 532), the court held the accident to be inevitable, because neither of the colliding vessels could see the other in time to prevent the accident.
It is also claimed by the defendant, that the negligence of the plaintiff contributed to the injury on two grounds. First, that the tow was in the wrong place, and had committed the same fault alleged against the defendant in endeavoring to sail east of the actual channel, and was guilty of negligence in running aground, which contributed to the injury. The tow was grounded several hours previous, and was entirely helpless at the time of the accident. Those in charge of the St. John had a full view of the tow, and knew her condition before leaving the dock at Albany, and all the way to where it lay, and the evening was clear and moonlight. The St. John, and all other passing vessels, were bound to regard the actual situation of the tow, and to exercise reasonable care to prevent injury. It is not pretended that the tow did anything to affect the action of the St. John; it simply lay still; and it is no defence, that some hours previously she had grounded through carelessness. It cannot be said in such a case, that the plaintiff's negligence contributed to the injury. The negligence must be proximate and not remote. It must be a negligence occuring at the time the accident happened. Notwithstanding the previous negligence of the plaintiff, if at the time when the injury was committed, it might have been avoided by the defendant by the exercise of reasonable care and prudence, an action will lie for the injury. ( 18 N.Y., 256, per HARRIS; Davies v. Mann, 10 M. W., 545; Haley v. Earle, 30 N.Y., 208; 24 Verm., 487; Cummins v. Spruance, 4 Harr., 315). The case of Strout v. Foster (1 How. U.S., 89), is unlike this. There the injured vessel had voluntarily and unnecessarily anchored in the thoroughfare of one of the difficult passes, or outlets at the mouth of the Mississippi. The colliding vessel was a sailing vessel, and became unmanageable in consequence of the sudden failure of the wind, and floated by the tide and currents against the anchored vessel. The only evidence of negligence was the opinion of some experts, that the accident might have been avoided, if everything had been done by the defendant, which it was possible to do; in other words, that the highest possible degree of care and skill might have prevented the collision. The circuit judge held, that the law imposed no such diligence on the party in that case, and yet the judgment of the Circuit Court was only affirmed by an equal division of judges of the Supreme Court. In principle, the case is similar to Kelsey v. Barnes ( 12 N.Y., 425), and, if regarded as authority, is not antagonistic to the right of the plaintiff in this case.
It is also urged, that the tow was negligent in not warning the St. John of the danger of proceeding eastward by signal or otherwise. It seems that one of the men on the tow, while it lay aground, had made an examination and ascertained that the channel remained unchanged on the west side, and the omission to communicate this knowledge, is also urged as an act of negligence. Signals are given to indicate the course of the vessel giving them. Passing steamers give one whistle if they intend to go to the right, and two, if to the left. If the St. John gave two whistles (about which there was some question on the trial) there was no usage or custom of navigation requiring any return signal from the tow, and any attempt to signal or give an alarm (if it had any effect) would have been as likely to produce confusion as to have benefited the steamer, while an effective interference on the part of the tow in the sailing of the steamer, resulting in injury, might have cast the responsibility upon the plaintiff; and as to communicating the knowledge possessed by those in charge of the tow, it does not appear that it was practicable to do so. But we prefer to place the decision upon this part of the case upon the ground, that there was no legal duty on the part of the tow to either signal, or impart any information as to the channel (which those in charge possessed) to the St. John. A steamer with the full control of its machinery, desiring to pass a vessel, whether stationary or moving, must do so upon its own responsibility, and is bound to select its route at its peril. (1 Wall., 522, 146, 672; 18 How., 587, and cases there cited.) The St. John had access to all the knowledge which the tow had, and, in addition, had several days experience in sailing up and down that spring, which the latter had not. The principle that every person is bound to exercise reasonable care to protect his own property from injury, does not apply to the omissions complained of. First, because the St. John knew the exact position of the tow, and it was unnecessary to give any information on that subject, and because the tow had no reason to suppose that the eastward course of the St. John would result in an injury to any of its boats. The St. John drew less water than the McDonald, and it may have been supposed that she could pass on the east side, and if not, that she would ground. In a case where a warning is necessary to prevent a collision, to inform an approaching vessel of the presence of a stationary one, which from darkness or other cause it could not discover, common prudence would dictate, and ordinary care demand that the warning should be given, if practicable. But it would be a dangerous rule, and lead to the greatest injustice, to hold a party liable for a mere omission to give information in a case like the one before us.
The statement and directions of the general agent of the defendant received in evidence, could have done no legal injury to the defendant on the trial, if inadmissible, restricted as they were to the question of damages, as there was no dispute on the trial as to the amount of damages.
The judgment must be affirmed.
All the judges concurring, except PECKHAM, J., who having been a member of the General Term below, did not sit.
Judgment affirmed.