Opinion
Argued May 29, 1874
Decided September term, 1874
R.W. Peckham for the appellant.
Amasa J. Parker for the respondent.
The learned counsel for the appellant does not question the report of the referee so far as he found the facts, but claims that the facts found do not sustain the conclusions of law.
In reviewing a judgment entered upon the report of a referee, we must not only take all the facts found, but such other facts as the referee may properly have found upon evidence tending to establish them. We must in this case give some force to the finding of fact that defendant's servants were guilty of negligence in the management of the propeller. There was certainly no conclusive evidence that plaintiff's servants were guilty of any negligence. They testified that they run the schooner on her westward tack as near the west shore as was usual in the night, and as they thought prudent, and then, without seeing the propeller, they came about and started on the eastward tack, and then first discovered the propeller, when it was too late, by any management of the schooner, to avoid a collision. Defendant's servants on the propeller saw the schooner before she came about, and after they saw her, could have stopped the propeller, or gone to the westward of her, and have thus avoided the collision.
The schooner was not absolutely bound to keep on her westward tack, and, upon the facts, I can discover no negligence in bringing her about upon her eastward tack. It is true that she was, by this act, placed in peril. But after she was thus brought about she was bound to keep on her course, and the propeller was bound to keep out of her way, if she could, by the exercise of proper care. There was no necessity for precaution on the part of the propeller until the schooner came about, and then the rules of navigation became obligatory upon both vessels. It is one of the rules applicable to vessels approaching each other, that a vessel propelled by steam, from the fact that she is more easily managed and more fully under control, shall keep out of the way of a sailing vessel, and that the latter shall keep on her course; and this rule is obligatory from the time the necessity for precaution begins, and continues applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain.
In New York and Liverpool U.S. Mail Steamship Co. v. Rumball (21 How. [U.S.], 372), it is said that under this rule the steamer must of necessity determine for herself, and upon her own responsibility, independently of the sailing vessel, whether it be safe to go to the right or left or to stop, and in order that she may not be deprived of the means of determining the matter wisely, it is required that the sailing vessel shall keep her course and allow the steamer to pass either on the right or left, or to adopt such measures of precaution as she may deem best suited to enable her to perform her duty and fulfill the requirement of the law to keep out of the way. In The Carroll (8 Wall., 302), the rule is laid down as follows: That when a steamship and sailing vessel are approaching from opposite directions, or on intersecting lines, the steamship, from the moment the sailing vessel is seen, shall watch with the highest diligence her course and movements, so as to be able to adopt such timely measures of precaution as will necessarily prevent the two boats coming in contact. (See, also, The Fannie, 11 Wall., 238; The Lucille, 15 Wall., 676, and Parrott v. Knickerbocker and N.Y. Ice Co., 46 N.Y., 361.)
We therefore see no reason for disturbing the finding of the referee that the propeller was in fault and liable for the damage occasioned by the collision.
Upon the trial McAllister, the captain of the propeller, was sworn as a witness for the defendant, and upon his cross-examination plaintiff's counsel was allowed, against the objection of the counsel for the defendant, to ask him several questions as to accidents which had happened while he was pilot or captain of the propeller. I think the referee erred in allowing the questions, but they manifestly did no harm. They did not elicit any evidence which could in any way influence the decision of the case.
The referee found that the plaintiff was entitled to recover as his damages the cost of repairing the schooner, and her rental value while she was undergoing repairs, and interest upon both items. It is now claimed that he erred in allowing interest upon the latter item. There was no error. Having ascertained what plaintiff's damage was, the referee properly allowed interest on the amount thereof from the time plaintiff became entitled to payment of the same. Without the interest plaintiff would not have recovered full indemnity. ( Worrall v. Munn, 38 N.Y., 151; Whitehall Transportation Co. v. N.J. Steamboat Co., 51 id., 369.)
The judgment should therefore be affirmed, with costs.
All concur.
Judgment affirmed.