author: Spencer, J. Monell, J. (concurring.)

text:
    JOSEPH F. MARTIN, Plaintiff and Respondent, v. WILLIAM A. FARNSWORTH, Defendant and Appellant.
    In the charter of, or a contract for, a tug-boat for a specified service, the contract of the party hiring that he will pay the price or hire of a coast pilot required for the service by the owner or master of the vessel, does not make the party hiring the tug-boat, liable for any negligence, lack of skill or diligence on the part of the pilot hired with the approval of the owner of the tug, as if he was the servant or agent of the party hiring the tug; nor does such a contract have the effect of placing the tug-boat in the possession and under the control and management of the hirer to that degree that he is responsible and liable to the owner of the tug-boat for the care, management and safe navigation of the same upon her contemplated voyage.
    These words in a telegram to an agent, “Send me small tug-boat,” “ Make the best trade you can,” are a full and comprehensive au thority from the principal to the agent, to contract for, hire or charter, a tug-boat in any manner and upon the best terms possible under the circumstances, and the contract of the agent for tug-boat, and its crew and appendages, binds the principal.
    A pilot on board of a vessel during her voyage at sea is subject to and under the commands, orders and direction of the master of the vessel.
    The master is the superior officer of such pilot during the whole voyage, and upon the master devolves the responsibility and charge of the vessel and her sailing and general care • and management during all of said voyage.
    The respective responsibilities, cares and duties of a master, pilot and mariner, when on a voyage, fully discussed, and the cases illustrating the same cited and reviewed.
    Before Monell and Spencer, JJ.

      Decided April 1, 1871.
    Appeal from a judgment entered upon the verdict of a jury, in favor of plaintiff, for seven thousand five hundred and ninety-eight dollars and one cent, in December, 1869.
    In November, 1862, the defendant’s bark Antietam being ashore near the Delaware Breakwater, he sent the following telegram to his agents in New York :
    “ Dated Lewes, Del., 13, 1862.
    “Received New York, Nov. 13, 1862.
    ‘To Metcalf & Duncan :
    ‘ ‘ Send me small tug-boat, steam-pump, engineer, my diving apparatus and diver, or telegraph -Eben Eaton, 90 Bolton-st., South Boston, to' come. Make the best trade you can.
    “W. A. FARNSWORTH.”
    Messrs. Metcalf & Duncan chartered the plaintiff’s tug-boat May Queen or Cinderella, to go down to the Delaware Breakwater upon that service. In regard to the terms of this contract the evidence was as follows :
    On the part of the plaintiff, the plaintiff testified: On November 13, 1862, Metcalf & Duncan sent for me, and I went to their office (in New York) ; they said they had received a telegraphic dispatch from Lewes to send down a smaE tug-boat to the Antietam ; I agreed with them to go down to the Antietam. They were to pay for the coal on board at the rate of five dollars and fifty cents per ton. I told them they must furnish me a pilot. They said they did not know where there' was a pilot at that particular time; they asked me to find one for them. I found Mr. Cutler, and took him in to Metcalf & Duncan the next morning, and they made a bargain with him to navigate the - boat for five dollars a day, and he was to make himself generally useful in endeavoring to save the Antietam in the interest of her owners when he got down there. The business of the May Queen was towing in and about the harbor of New York and to and from sea ; she had no pilot of her own, and the people on board were not acquainted with the navigation along the coast down to the Delaware ; itwould not have been safe to have sent her without a coast püot; I would not have sent her without one. When she went upon this voyage she had her usual crew on board, a competent master, a competent first officer, a competent engineer, and a competent crew, and she was well equipped in every respect ; I found Mr. Cutler (the pilot) at the Hell Grate pilot office; I went there for him ; I had known Mr. Cutler as a coast pilot before I took him up to Duncan & Metcalf, and introduced him. saying, “This is Mr. Cutler, a coast pilot; ” I then told them to make their own arrangements, that I had nothing more to do with it; William H.' Martin, a son of mine, was master of the boat; he was about twenty-three years of age.
    On the part of the defense, Samuel Duncan, of the firm of MetcaE & Duncan, ship agents, &c., testified :
    I negotiated a charter of this vessel in question in pursuance of that telegram ; that was my authority, and the only authority I had; I received the dispatch late in the afternoon of the 13th and looked around for a boat, and left word at Martin’s office for him to come down to our office. He came down in the afternoon and said he had this boat and would charter her for six dollars per hour if we would furnish a pilot and coal; I told him that was rather high, and that we would look around, and he might come in again ; finally he came in again, and we told him we could give him four dollars and fifty cents an hour and pay for his pilot and coal. I asked him what a pilot would cost, and he said he did not know, that he would get one as cheap as he possibly could. Afterwards he brought in Captain Cutler and introduced him to me, and said he was a good pilot and would go for five dollars a day. I asked him if he was satisfied with the pilot, and he said he was 'perfectly satisfied. I told him that I knew nothing about the pilots along the coast, and that he might look out for his own pilot. Subsequently the witness was interrogated by plaintiff’s counsel in regard to a letter he wrote to the defendant on November 14, 1862, in regard to the matter, of which the following is an extract:
    “New York, Nov. 14, 1862.
    “ W. A. Farnsworth, Esq.,
    Lewes, Del.
    “Dear Sir:
    “We received a dispatch from you late yesterday evening, saying, ‘ Send me small tow boat, steam pump, engineer, new diving apparatus and diver, or telegraph Eben Eaton at Boston to come; make best trade you can.’
    “ Immediately after receiving the dispatch we commenced to look around for a tug-boat, and found that the smallest boats would not go outside, and that the best we could do was to charter the steamer May Queen at the rate of $4.50 per hour, coal to be furnished by us, coal sufficient for the passage down will put on board here a.t $5.50 per ton, and whatever the steamer may require afterwards you can probably furnish from there.
    “We are also obliged to furnish a pilot at $5 per day, he agreeing to work and render you all the assistance he can in getting off the bark.”
    Q. Was it true on November 14, when you wrote that letter, you were to furnish a pilot at five dollars a day %

    A. Yes; I suppose it was.
    By defendant’s counsel:
    Q. What do you mean in that letter when you say “we are also obliged to furnish a pilot ? ”
    A. I meant we would have to pay five dollars a day for a pilot, in addition to the four dollars and fifty cents an hour, that is what I meant, and nothing more or less.
    Abner Cutler (the pilot in question) testified on the part of the defendant, in regard to the employment of himself as pilot on this occasion:
    Mr. Martin came to the Hell Gate pilot office and asked if there were any coast pilots ; the gentleman keeping the place pointed me out; Martin asked if I was a coast pilot. I said, Yes. He said he had a boat going South, and wanted to know what I would charge to go to the Breakwater ; I said five dollars a day. He said that would do, that that was the sum to which he was limited to pay; he invited me to go into Duncan’s office, as they paid the price of the coast pilot. He introduced me as the man he had selected to go and pilot the boat down. Mr. Duncan asked me if I was a coast pilot, a competent pilot, or acquainted down there ; I told him I was. He asked me what wages I charged; I told him five dollars. Mr. Martin said, “I believe that is what we agreed upon.” Mr. Duncan asked Mr. Martin if he was satisfied with me, and he said he was. We started, I think, November 14, on a Friday, in the afternoon.
    George Gregory, a witness on the part of the plaintiff, testified as follows:
    I know Farnsworth, and have seen Mr. Martin, the plaintiff. I was present at Mr. Duncan’s office at the time of a negotiation for the steam-tug May Queen, in November, 1862. I heard Mr. Martin and Mr. Duncan, trying to make a bargain for the charter of the steamboat ; I forget the boat’s name ; Mr. Martin asked six dollars an hour for his boat; they did not agree on that; Mr. Duncan offered him four' dollars and a half an hour for the boat, which Mr. Martin accepted ; then Mr. Martin wanted Mr. Brincan to furnish him with a coast pilot, which Mr. Duncan refused to do ; Mr. Duncan proposed to pay the hire of the pilot and let Mr. Martin furnish his own pilot; Mr. Martin went out, and was gone I'suppose half an hour, and came back with a man and introduced him as Captain Cutler; Mr. Duncan asked one of them if he was a good pilot on the coast; Mr. Martin said he was satisfied with him.
    The following statement of facts in regard to the voyage and the loss of the said steam-tug appeared from the evidence on the trial, and is collated from the testimony of all the witnesses:
    The vessel sailed from New York harbor in the afternoon or evening of Friday, November 14, ,1862, bound for Delaware Breakwater, distant about one hundred and twenty miles. She was manned by a captain or master, first officer or mate, engineer, fireman, pilot, and three other mariners. The pilot was the same one heretofore referred to as the coast pilot engaged for the voyage. He had been acting as coast pilot for four years, and had been a sailor since Ms youth, a period of about thirty-four years, during which time he had been mate of a brig and a ship, and master of a brig, and knew the courses and route of the proposed voyage, and the coast along which the vessel would pass. That night or early next morning, there "was a fresh breeze blowing that raised considerable sea, and the .master thought the weather too rough to run the vessel, or that she was not sufficiently strong to run in such weather, and that it would endanger her to stay out, and he ordered the pilot to make a harbor. The pilot thought the boat should stay out, and go on her voyage, and that she could stay out with safety ; that there was no danger from the wind or sea and she could go on to the Breakwater, then distant about fifty miles, which with the speed she was then making she would reach in eight or nine hours ; but agreeably to the master’s order or request, the pilot went into Absecom harbor, eighty miles from New York, and reached anchorage therein at half-past ten o’clock, Saturday forenoon, November 15, 1862, where they remained until about two o’clock, Monday afternoon, November 17, when they continued the voyage. When night came they were in sight of Cape May light, west-south-west from the vessel. The weather had thickened and rain had commenced. The pilot was at the helm. The captain, mate, and engineer had gone below to supper, leaving the .pilot the only person on deck, there being no lookout. The pilot saw on the starboard bow of his vessel a single light.» He took his glass and examined her. She was under sail and showed but one light and did not whistle, and the pilot concluded that she was a sailing vessel, as he had the right to, for vessels under steam should show more than one light, and are bound to whistle when approaching. He accordingly put the helm of the May Queen to starboard to turn her away from the approaching vessel. She, however, proved to be the United States steam gunboat Wamsutta, which, seeing the May Queen ahead, put her own helm to port. A collision occurred between the two vessels, by which the May Queen was lost.
    The captain and mate of the Wamsntta testified that the lights of the tug were seen by them at the distance of an eighth of a mile, and supposing the tug was heading towards them they kept off to the eastward, and the tug seemed to do so likewise. There was no sounding of the steam-whistle by the Wamsntta.
    The collission seems to have occurred from the mistake of the pilot of the steam-tug, .mistaking the Wamsntta for a sailing vessel coming in an opposite direction ; and being off his starboard bow, he kept the tug to the eastward to avoid crossing the bow of the supposed sailing vessel. The people on the Wamsutta, knowing the tug to be a steamer, kept off to the eastward, but sounded no whistle.
    The court (after objection by defendant) aEowed plaintiff to prove by witnesses a custom or usage in respect to the relation between a coast pilot and the master of a vessel on board of a vessel at sea, their respective authority in command over each other, and upon which rested the absolute charge and control of the vessel. To this ruling defendant excepted, the witnesses introduced by the plaintiff testifying substantially that a coast pilot took absolute charge and had absolute control of a vessel, her watch and crew, and the discipline of the same, her lights, and her officers, including the master, and that the latter was subordinate to the pilot, who was supreme in command, and that the latter was not bound to obey any order or command of the master. This testimony was contested by other witnesses. The testimony of the latter tended to establish that the only duties of a coast pilot on board a vessel were to direct as to the course of navigation of the vessel along the coast, and to take the vessel in and out of ports and harbors as directed by the master, who was supreme in command and had absolute charge and control of the vessel and crew, including the pilot, and upon whom (the master) devolved all the responsibility of the care and government of the vessel, and the control and discipline of his officers and mariners, on board of the same.
    There was testimony uncontradicted in regard to the incompetency and inexperience of Martin, the master of the tug, as a master of a vessel at sea, and also that there was no regular watch kept on board or on deck, and that there was no lookout on deck at the time-of the accident or for some time previous.
    At the close of the testimony in the case, defendant moved to dismiss the complaint on the following grounds:

      First. The pilot was plaintiff’s agent. There is no law requiring plaintiff to take a pilot on board. He selected the pilot. The pilot was doing his work. Met-calf & Duncan had no power to employ and put a pilot on board the ship, or in any manner to bind the defendant for the safe navigation of the ship.

      Second. The negligence of the master and crew contributed to the injury. Neither the captain nor mate had been on watch within twenty-five minutes previous to the accident.
    There is no proof that there was a proper lookout posted, and that he was attending to his duty at the time of and just previous to the collision, and the person who should have been on the lookout was in court and was not called by the plaintiff. There is no evidence that the collision was the result of the negligence of the pilot. That the evidence shows that the plaintiff found the pilot, brought him to Metcalf & Duncan, and expressed his satisfaction as to his competency as a pilot, and therefore he was not the agent of the defendant. Also that the evidence shows that Cutler, the pilot, was employed by both parties to do an act in which they were mutually interested. He was therefore the agent of both parties, and being the agent of both parties, neither can recover against the other for any act of his or any negligence.
    This motion was denied, and defendant excepted.
    The plaintiff claimed to recover, in this action, the value of the lost steam-tug from the defendant, assuming that, under the contract, the defendant became liable for the safe navigation and management of the tug under said pilot, and that the same was lost through the carelessness, unskillfulness, and negligence of said pilot upon said voyage.
    Defendant denies his liability, and, claiming the loss to have occurred through the default of the plaintiff and his agents and servants, demands judgment for the value of property on board belonging to defendant, which was also lost.
    The jury found a verdict for the sum of five thousand six hundred and two dollars and fifty cents in favor of plaintiff, upon which judgment was entered, and from which judgment the defendant appeals.

      Benedict, Burr & Benedict, for appellants.

      Martin & Smith, for respondents.
   Spencer, J.

There was much testimony of a conflicting character before the court and jury on the trial of this action ; but in the view I take of the case, and the principles upon which it should have been decided, much of this testimony was irrelevant, and immaterial to the issues. With due respect for the learned judge and counsel before and by whom this case was tried, I think that the principles and precedents that should govern maritime contracts, like a charter of a vessel, or the relations existing between and which control the action, service, and liability of a master and mariners upon a vessel at sea, were overlooked.

The questions considered by the court below appear to have been as follows:

First. Did the telegram authorize Messrs. Metcalf & Duncan to charter this tug for the service, and to contract to furnish a pilot for her navigation on the proposed voyage ?

Second. And if the authority was sufficient, and the agreement was to furnish a pilot (instead of paying for the service of a pilot, as contended by defendant), did the contract have the effect of placing the tug in the possession and under the ■ control and management of the defendant to that degree that he became liable for the care and management and the safe navigation of the vessel in her contemplated voyage, and for any negligence, lack of skill or diligence on the part of the pilot so furnished, or on the part of the master and crew of the vessel during said voyage ?

.Third. Was the vessel lost by or through the want of skill or the negligence of the pilot in the performance of his duties as such, or of the master and crew, while acting under his management and control during the voyage.

Fourth. These questions being decided in the affirmative, what was the amount of plaintiff’s damages in the premises.

I think the telegram was sufficient to authorize Metcalf & Duncan to do in the premises all that the plaintiff claims they did do, and that their action bound the defendant. I think the words “send me small tug-boat” were most full and comprehensive, as authority to provide the same in any manner and upon the best terms possible, and their contract in the premises (whatever the same were) for tug-boat, steam-pump, engineer, and diver for this service were binding upon their principal.

I think the weight of the evidence, however, preponderates in favor of the version of the contract as claimed by the defendant. The plaintiff is the only witness whose testimony tends to establish that the contract was to furnish a pilot, and his great interest in the result of the action raises a presumption against the absolute accuracy of his memory in regard to the specific words that were said or were used by Metcalf and Duncan in making the contract, especially when contradicted by the positive testimony of Mr: Duncan, who made the contract, and the witness George Gregory, who was present at the time the contract was made; and the testimony of these two is supported by that of the pilot, Cutler, in regard to what took place and was said when he (Cutler) was introduced to Duncan..

I think the court should have concluded from the testimony that the plaintiff was mistaken or forgetful of the specific terms of the contract about the pilot, and that in truth and fact Duncan, acting as the agent of defendant, only agreed to pay the expense or hire of the pilot for the voyage, and upon such a conclusion the court should have dismissed the complaint upon motion, and the refusal so to do was error. I think, also, that upon the charge and submission of the case to the jury, the jury should have found a verdict for the defendant. In finding for the plaintiff the jury not only disregarded the charge of the cou’t, but also found a verdict wholly unsupported by the evidence that was material in the case, and therefore the judgment should be reversed. But assuming that the court and jury were correct in their conclusion that defendant did contract with the plaintiff “ to furnish a coast pilot for the voyage,” and thereby incurred all the liabilities that wbuld ensue from the use of those words, yet, I hold as a conclusion of law that such a contract did not make him responsible for the care and management and safe navigation of the vessel on the said voyage, but that the said pilot was received and placed upon said vessel, simply as a pilot at sea, to advise and direct the course of said vessel to her place of destination, subject to and under the genera] authority and command of her master, who was the superior officer of such pilot during the whole voyage, and upon whom (the master) devolved the responsibility of the general care and management of such vessel during her voyage. I hold that this pilot was only a mariner or subordinate officer, whose duty was to advise and direct the master in regard to the course the vessel should take, or in other words the navigation of the vessel from New York to the Deleware Breakwater. He was an assistant for that purpose, supposed to know the coast near to which their navigation lay, and to know the ports and harbors into which the vessel could be taken in case of storm or peril of any kind, and to know and be able to advise" and direct the best courses upon which to sail in order to accomplish the voyage in the most safe and expeditious manner. Yet he (the pilot) could give no order or direction that could be enforced, except such as was approved and executed by and through the superior and supreme authority of the master. The extreme limit of the responsibility of the defendant under this contract was that he should furnish a man that was a good coast pilot, one who possessed knowledge and experience in regard to the coast, the locality of the point to be reached, and the approaches thereto, to that degree that he was competent to advise the master, and, under his authority, 'direct the course or navigation of such vessel upon such voyage along the coast, and thus enable the master to safely navigate Ms vessel and make a voyage along, and to a point upon, a coast with which he and his other officers and mariners were unacquainted.

There are generally headlands, islands, shoals, currents, inlets, beacons, or harbors (as in this case), to be sought or avoided, in such a voyage, and which are among the incidents of coast navigation, and a full knowledge of these the coast pilot is presumed to pos- „ sess. He is a pathfinder for the vessel upon such a voyage. He points -out and directs the best route and course to accomplish the voyage expeditiously and safely along the coast to the destined port.

There is no question in this case as to the competency of Cutler in these respects. In fact, the evidence fully establishes that he was a coast pilot of experience and ability, and I think the defendant furnished a coast pilot fully competent in .all respects, when he furnished Cutler as one.

There is no evidence of any lack of skill, nor negligence in the performance of his duties as a coast pilot on the part of Cutler, as I view this case. If there was negligence, lack of skill or judgment on his part, of any kind, it was in the performance of other duties than those of coast pilot, namely, in those of steersman, lookout, or mariner, which he was at the time (by the consent and direction of the master) performing on said boat.

I also hold that the court below erred in its ruling when it admitted testimony, objected to by defendant, of a usage or custom in regard to coast pilots having absolute and supreme control and management of a vessel on a voyage like this as thé superior of the master of said vessel.

Such control and management and the government and discipline of a vessel like this engaged on such a voyage should be determined as a question of law, and cannot be considered as a question of fact based upon custom or usage. This power and authority is clearly and unquestionably conferred upon and intrusted to the master of the vessel by the common, civil, and maritime law, and he (the master) must be held responsible for its use, non-use, or abuse, and he cannot evade that responsibility nor shift the same from himself upon other persons by virtue of any custom or usage to the contrary.

Abbott on Shipping, at page 231, defines this law: “By the common law the master has authority over all the mariners on board the ship in all lawful matters relating to the navigation of the ship. Such authority is absolutely necessary for the safety of the ship and the lives of all persons on board.”

The late Judge Betts, who was distinguished for his learning and ability as a judge of maritime law, has expressed himself .in many cases to the same effect. In one he uses these words: “ The master of a vessel has complete authority in everything relating to the management and conduct of his vessel.”

See also opinion of Judge Ware (Butler v. McLellan, Ware, p. 222) : “The captain has all the authority of command on board the vessel, and the inferior officers, as well as the common seamen, are bound to obey his orders.”

The admiralty decisions favor only a single division of persons in charge of a ship, viz: that of “.master and mariners” or “master and crew.” “In cases of a lien upon a ship for wages under admiralty law, the pilot as also all other officers under the rank of master are deemed and classed as mariners, and hold their lien as such, which is prohibited to the master. He has no lien because he is the master, the agent and representative of the owners, in the performance of all his duties as master. In salvage and prize cases the pilot has been classed and considered as a mariner. In one of the oldest treaties upon maritime law, a copy of which is to be found in the appendix to second volume of Peters' Admiralty Pecisions, the power and responsibility of a master of a vessel are thus defined :

“ A master of a ship is one who for his knowledge in navigation and for his fidelity and discretion hath the government of the ship committed to his care and management.”

“The law looks upon him as the officer who must render and give an account for the whole charge, when once committed to his care and custody, and if misfortunes happen through negligence, willfulness, or ignorance, of himself or his mariners, he must be responsible.”

“The master hath the supreme rule on shipboard.”

The duties of mariners are comprised in the words “Obedience to the lawful commands of the master.”

“ The mariners are under his correction and government, and know no other superior on shipboard but himself.”

■ The “ Laws of Oleron,” The Laws of Wisbwy,” “ The Laws of the Hanse Towns,” The Marine Ordinances of France or of Louis XIV.,” comprise the earliest sea laws codified, and are the basis of the present maritime law of this country, as also of other nations.

They recognize the office of pilot on board of a vessel for the voyage, and distinguish between his duties and those of a harbor or river pilot.

“The local pilots were called locmen,’ and were mariners hired at every river or harbor to assist the pilot of the vessel in guiding the course of the vessel into harbor or through a river or channel, so as to avoid shoals, rocks, &c., &c. If a vessel was lost by the false direction or ignorance of the local pilot, he was liable to lose hie head at the hands of the master or any of the mariners, who were authorized to cut it off, as a penalty for his false pretenses of knowledge or skill” {Laws of Oleron, arts. 13 and 14, and note of Qleirac to arts. I and 14).

“ The mastér shall chuse the ship’s, company and hire the pilots, mates, and mariners.”

“We enjoin all masters making long voyages, to assemble every day at noon, or oftener if necessary, the mates and pilots and other expert persons, and to confer with them about the courses made and to be made” {Ordinances of France).

“ The master must understand the art of piloting and navigation, that he may know how to control the pilot; and mind how he steers the ship.”

“ In a merchantman the first officer is the master, the second the pilot (who enjoyed that place because in honor of the sciences he profest and practysed), the third the mate,” &e. (note to Art. 1, Laws of Oler or).

By the laws of Wisbuy, the master was obliged to hire a local pilot of a harbor, or river, or channel, when requested so to do by his own pilot and Ms mariners.

The first article of these last-named laws classifies the mate and pilot as mariners.

The second article provides that every pilot who does not understand his business shall repay the master the wages advanced to him, and half as much more as he had promised him.

The fifty-ninth article provides that when a ship is in or before a harbor or river with which her pilot (the ship’s pilot) is not well acquainted, the master ought to hire one at the place to carry his ship in.

The distinction between a harbor, river, or channel pilot and a pilot on board ship during the whole voyage is recognized and defined in Abb. on Shipp, p. 266, § 195, and several decisions are there quoted in the ■ notes, to the effect that the latter kind are properly mariners. I do not consider nor discuss this case as one affected by or connected with the rules that govern the management of a vessel when under the direction or subject to the duties of a licensed harbor or river pilot, on pilot grounds. This is not such a case. It is that of a pilot for a voyage, and governed by the general rules of law applicable to the relations of master and pilot at sea or on a voyage, which, I hold, cannot be determined by usage or custom.

The master of the tug, in this instance, did not provide a proper watch nor lookout on board of his vessel. He placed the pilot in charge of the wheel, and he and the mate descended to the kitchen for their supper. He left no one upon the deck except the pilot, and he at the wheel. The pilot acting as wheelsman, without captain, mate, watch, or lookout, or any one within his call to aid him or advise with him in any emergency, was left exclusively to his own observation and judgment and action, in relation to any approaching vessel. He saw one that he concluded was a sailing vessel, headed toward the north-west, or to his starboard. He kept on his course instead of steering to the starboard, or crossing the bow of what he deemed a sailing vessel. This was right, according to his sight and judgment, in relation to the approaching vessel at the time. . His observation, judgment, and action were in fault, for the supposed sailing vessel proved to be a steamer, and he discovered his mistake too late to avoid the direful results of a collision. I hold that in such a case neither he,nor his employers should be held liable for his error of judgment, which depended upon his observation, and was not the result of carelessness, nor want of skill as a coast pilot.

First. As wheelsman or helmsman, in full and sole charge of the deck, he exercised his best judgment and skill and the greatest care and diligence, and was not guilty of any negligence of his duty as such, and he is not liable for the mistake in his observations.

Second. As wheelsman or helmsman he was the servant and agent of the plaintiff, and not of the defendant. He was not performing the duties of a coast pilot at the time.

Third. As coast pilot he was under and subject to the commands of the master of the tug, and he was substantially the servant and agent of the plaintiff, and neither he nor his employer was liable to the plaintiff for any accident or damages, except those which could be directly traced to his ignorance of the coast or lack ' of knowledge and skill as a coast pilot, and neither he nor his employers were liable or responsible for the proper management of the vessel, for proper helmsman, lights, lookouts, watch, its speed, or any other matter pertaining to its goverment and discipline on the voyage.

The master was responsible for all these things, and if through any fault and negligence of his in the premises loss occurred, the plaintiff must bear the same.

Such a claim as this on the part of plaintiff cannot be sustained.

I hold that the master and his officers and mariners, including this coast pilot, were the agents and servants of the plaintiff. The master was the superior officer over the pilot; he was supreme in command upon that vessel. He was under no other obligation to heed- the advice or direction of the pilot nor to enforce the same, beyond the obligation that arose from his conviction of mind and judgment that the advice was good and that the direction was entitled to consideration and enforcement.

And it seems the parties understood their respective relations and acted thereupon, for the evidence tells us that the master consulted with the pilot about entering a harbor on the way down, and ascertained that Absecom harbor could be most conveniently reached. The pilot thought and advised that it was unnecessary to make a harbor; that it was proper and safe for the vessel to continue on its direct course at sea toward the Delaware Breakwater.

The master differed in opinion and judgment with the pilot, and commanded him to make Absecom harbor, and the pilot very properly obeyed the command or request of his superior officer.

The coast pilot was overruled by the master, and submitted. The master was responsible for this deviation from their course and delay in their voyage ; and if upon the resumption of the voyage there was a lack of proper lights, lookouts, watches, or any other matters necessary for the proper and careful management and sailing of the vessel on her voyage, or an absence of necessary precautions against peril at sea, the exercise of which might have avoided this calamity, he is equally responsible, and he and his employers should not be relieved therefrom, and the consequences of a collision fall upon a coast pilot on board, who was his inferior officer, and engaged at the time in the performance of other duties than those of coast pilot, to which he had been assigned, or permitted to perfoim, by the master.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Monell, J. (concurring.)

The evidencé in this case very clearly establishes, I think, that the pilot put on board the steam-tug, was not employed by the defendant, and was not, therefore, his servant. The weight of the evidence is, that the pilot was selected and employed by the plaintiff, the defendant merely agreeing . to pay his wages, fixed at five dollars a day, in addition to the charter price of the vessel.

Under this strong preponderance of the evidence, as shown in the opinion of my associate, the motion for a nonsuit should have been granted, or the jury should have been instructed, as requested by the defendant, that upon the evidence, the plaintiff was not entitled to recover.

I therefore concur in reversing the judgment on that ground, not deeming it necessary to examine the other ground discussed in the opinion of my associate.

It may be said, however, of that ground, that whatever may be the relative powers and duties of masters and pilots in the navigation of coastwise vessels, and assuming that the pilot is subordinate to the master, still if the loss was caused by or through the negligence of the pilot) while in the discharge of his duty as such, as it is claimed by the plaintiff that it was in this case, the employer of the pilot, whoever he may. be, must suffer such loss. So that, if it had been established in this case, that the defendant had employed the pilot, and thus made him. his servant, he would be liable for any want of skill or negligence of the pilot as such.

Such liability grows out of the relation of master and servant, and is not affected by questions of authority on shipboard between master and pilot.

There is another reason why the verdict in this case should not be allowed to stand.

The court charged the jury, “That even if Cutler was employed by defendants as pilot, still he had no authority to take upon himself in such employment the entire working and control of the tug, or to relieve the captain or crew from any of the duties devolving on them. And it appearing from the evidence that the collision happened while the captain and mate were both at supper, the pilot being the only officer on duty with the consent and by an agreement between him and the captain, the pilot must be deemed in law to be the agent of the plaintiff and not of the defendant at the time, and the defendant cannot be made responsible for any injury happening through his neglect or default at such time.”

The verdict is irreconcilable with this instruction of the court, as it left the jury no alternative but to find for the defendant.

But they disregarded the instruction and found for the plaintiff.


source: Caselaw Access Project

author: By the Court.—McCunn, J.

license: Public Domain

text:
    CLAUS PUCKHAFER, Plaintiff and Appellant, v. GEORGE W. WHITE, Executor, &c., and SARAH J. GREGORY, Executrix, &c., Defendants and Respondents.
    Where one of the joint makers of a note or bond dies, no recovery can be had against his estate at law, upon such note or bond.
    The only remedy is against the surviving maker of said note or bond. This rule of law subject to an exception, where the bond or note was given to secure a joint debt or liability of the parties thereto.
    This rule of law is one of the common law, and the Code of Procedure has not changed the same. Section 136 affects only the practice.
    Before Monell, McCunn and Spencer, JJ.

      Decided April 1, 1871.
    The statement of the case appears fully in the opinion of the court.

      Cotterill Brothers, for appellant.

      James Flynn, for respondent.
   By the Court.—McCunn, J.

This was an action on an undertaking given by the defendants White and Robert A. Gregory, now deceased, on appeal from a judgment of the general term of the marine court to the court of common pleas, agreeably to section 53 of the Code.

George W. White was the defendant and judgment debtor in the appealed suit.

The cause was tried on April 29, 1870, and the complaint dismissed by the learned judge, on the ground that the undertaking was joint in its obligation, and that the death of Robert A. Gregory discharged the obligation as to his representatives. This was correct. The undertaking is beyond a doubt a joint undertaking and not several, and as the authorities now stand a recovery cannot be had against the representatives of Mr. Gregory, The only remedy left is that against White, the defendant in the original action, the joint obligor with Gregory.

Where one of the joint makers of a note or bond dies, there can be no recovery had against his estate at law. The only remedy the holder has is against the survivor alone, though he be insolvent (Chitty on Bills, 529 ; 5 Bac. Abr., “ Obligation,” D, 4 ; 7 Id. 506). In cases where the bond or note was given to secure a joint original liability or for a joint loan of money to maker as in case of partners in business, a recovery can be had against the representatives of one deceased who had entered into a joint undertaking before his death. But this case does not come within this class of cases. It is admitted by the pleadings that Gregory was the surety for White, and there is no case to be found in the books showing that a recovery can be had against the estate of a deceased joint maker of a bond when there could not be a recovery had if no bond had been given. In cases of a joint note given upon a joint loan of money, or joint liability formerly existing, it will be presumed it was intended the obligation should be several as well as joint, and effect will be given accordingly. But where, as in this case, the deceased was a mere surety, such a presumption will not be indulged. The rule limiting the liability upon a joint undertaking on the death of one of the promisors to the survivors is a common law rule; and the Code does not alter any fundamental principle of law as to the joint liability of contractors, and section 136 was simply intended to alter the practice. Where a surety contracts jointly with his principal the legal consequen.ee is presumed to be known to both parties, and the estate of the surety will be discharged should he die before the principal.

The doctrine covering these principles, and which governs in this case, is ably expounded by Mr. Justice . Kelson, in the case of Fielden v. Lahens (see manuscript opinion), also by Mr. Justice Greer, in the case of United States v. Price (9 How. U. S. 83).

We are clear the judgment should be affirmed.

Judge Spencer dissented from the opinion of the court-, but without any expression of his views as to the points decided.


author: By the Court.—Spencer, J.

text:
    WILLIAM F. HARRISON and CHARLES J. TENNANT, Plaintiffs and Appellants, v. MARY FORSYTH, Administratrix, &c. of JOHN FORSYTH, Deceased, Defendant and Respondent.
    The ruling of a referee in regard to the admission of testimony on the part of plaintiffs at one stage of the trial, which as the pleadings then stood was erroneous and subject to an exception, may be cured by subsequent proceedings on the trial on the part of plaintiff, such as an amendment of the complaint and testimony based upon such, amendment, by which it appears that plaintiffs was not prejudiced by the rejection of the evidence in the first instance.
    Before Barbour, Ch. J., McCunn and Spencer, JJ.

      Decided April 1, 1871.
    Appeal from a judgment entered upon the report of a referee in favor of defendant for costs, &c. The case appears in the opinion of the court.

      George W. Lyon, for the appellants.

      Daniel C. Briggs, for the respondent.
   By the Court.—Spencer, J.

The plaintiffs offered to prove on the trial that upon the shipment of the oysters, that were the subject matter of the action, Kingsland, the assignor of plaintiffs, directed and addressed by mail to Joseph Forsyth, at the city of New York, letters stating the fact of such shipment and the prices charged for the oysters. Upon the testimony being objected to by the defendant’s counsel, the referee excluded the testimony. The grounds of the objection and the ruling of the referee do not appear in the case, but on the argument it was admitted that such testimony was excluded as inadmissible under section 339 of the Code. Exception was taken to this ruling of the referee by the plaintiffs’ counsel.

Upon a full examination of the case and consideration of the points óf counsel made on the argument, I.have concluded that there is no sufficient ground for reversal except upon this exception, and that any error of the referee in this ruling was cured or made harmless by the subsequent proceedings on the trial. The materiality of this testimony consisted in its tendency to fix the price of the oysters as between the parties when the same were shipped or received, without leaving the price to be determined upon the evidence as to the value of the oysters. I am inclined to think that as the pleadings then stood, it was material, and that the referee erred in excluding the same. Subsequently to this, as appears from the case (folio 9) and immediately after this ruling, it appears that “Defendant’s counsel consents that the testimony may be taken subject to objection, the decision on the same to be reserved and with liberty to defendant’s counsel to move to strike out at any time. Whereupon the witness continued, &c.” Subsequently Charles H. Simmons, a witness on the part of the plaintiffs, testified without objection that Kingsland, the assignor of the plaintiffs, made out the bills for the oysters shipped and sent them on to Forsyth in letters, some of which letters the witness had written for Kingsland. When plaintiffs rested their case, they amended their complaint, which appears in the case in the following language :—

“Plaintiffs claim to recover the value of the 380 bags of oysters, besides the value of the bags as proved by the testimony, and requested the referee to conform the complaint to the facts as proved,, which was done, and then rested.”

I think this amendment to the pleading, and the introduction of the testimony as heretofore stated, cured any preceding error in the ruling of the referee, and plaintiffs were not prejudiced thereby.

The judgment must be affirmed with costs of appeal.


author: By the Court.—Monell, J.

text:
    LEOPOLD BERNSTEIN, Plaintiff and Respondent, v. DANIEL SWEENY, Defendant and Appellant.
    A proprietor of a house or hotel, kept on what is called the “European plan,” i. e., the renting of rooms, with a restaurant for meals, is “ the proprietor of a hotel,” within the meaning of the Act of 1855; Session Laws, chapter 421.
    Where a guest at the hotel entered his name on the register under a printed heading, as follows: “ Money, jewels, and other valuable packages, it is agreed, shall be placed in the safe in the office, otherwise, the proprietor shall not be responsible for any loss,” and there was no proof that this notice was seen or assented to by the guest;—Held, that it was not his contract.
    A watch and chain are not within the meaning of the statute, a jewel or ornament, for the loss of which a hotel proprietor is not liable, but is protected under the statute. The cases of Ramaley v. Le- ' land (6 Bolt. 358); Hyatt v. Taylor (42 N. T. 258); and the same case in the court below, (51 Barb. 632); also, Gile v. Libby (36 Barb. 70); cited and commented upon in support of the above propositions.
    Before Monell, McCunn, and Freedman, JJ.

      Decided April 1, 1871.
    Appeal from a judgment in favor of plaintiff against defendant, for the value of a watch and chain, stolen from plaintiff at the defendant’s hotel.
    The deféndant was the proprietor of “ Sweeny’s Hotel,” in this city. The house was kept on what is called the “European plan,” i. e., the renting of rooms, with a restaurant for meals.
    The following notice was put up in each of the rooms:
    NOTICE.

      ‘ ‘ Guests are respectfully notified that a safe has been provided, and is kept in the office of this hotel, for the safe-keeping of any money, jewels or ornaments belonging to them, that such money, jewels and ornaments may be deposited in said safe, and that unless so deposited, the proprietor will not be responsible for their loss.
    6 ‘ This notice is given under and pursuant to the law..
    “ D. SWEENY,
    Proprietor.”
    The plaintiff had been a frequent guest at the house.
    In July, 1868, he arrived at the hotel and entered his name on the register of the hotel, under a printed heading at the top of the page, as follows :

      “ Money, jewels and other valuable packages, it is agreed, shall be placed in the safe, in the office, otherwise the proprietor shall not be responsible for any loss.”
    He was assigned a room, and with his consent, another person was put into the same room. In the morning on awakening, he found the room door open, the other,person gone, and his watch, chain, and diamond shirt studs missing. They were valued at four hundred and fifteen dollars.
    On the trial before Mr. Justice Fithian and a jury, the defendant’s counsel moved to dismiss the complaint on the following grounds :

      First. That the defendant’s place of business was not an hotel or inn, but a lodging house, and therefore, the defendant was not liable for the alleged loss under the evidence given.

      Second. Because the defendant had a safe to place jewels, ornaments, and other valuables in the office, and had put up notices of such fact in the room in which the plaintiff lodged, and the plaintiff was negligent in not placing the articles alleged to be lost in the safe.

      Third. That the plaintiff, by his signature in the book of arrivals, agreed to place the valuables, etc., alleged to have been lost, in the safe, and that the defendant should not be liable if the valuables were not so placed.
    The justice overruled the motion on all the grounds, and the counsel for the defendant excepted.
    The court charged the jury that the plaintiff could not recover for the diamond shirt studs, but could recover for the watch and chain, such articles not being jewels or ornaments. He also charged that there was no evidence, that the plaintiff saw, or intended to be bound by the printing at the top of the register, but left it to the jury to say whether there was any such contract agreed to by the plaintiff.
    The defendant requested the judge to charge the jury,

      First. That the defendant is not liable for the loss of the articles claimed for, if the defendant had at the time of the alleged loss a safe for the safe-keeping of “ money, jewels, and personal ornaments,” and gave notice thereof by putting the same in a conspicuous place in the room. The justice refused to charge in that form, or other than as he had charged, and the counsel for said defendant excepted to such refusal.

      Second. The defendant is not liable for the loss if he so provided a safe, and put up such notices, even although the defendant put in another person in the same room, if the defendant had no reason to suppose that the person so put in the room was dishonest. The justice refused so to charge in that form, or other than as he had charged, and the counsel for said defendant excepted to such refusal.
    The defendant excepted to the charge, and appealed from the judgment.

      Mr. F. Byrne, for the appellant, defendant.

      Mr. S. Hirsch, for the respondent, plaintiff.
   By the Court.—Monell, J.

The cases of Wintermute v. Clark, 5 Sandf. 247, and Taylor v. Monnot, 4 Duer, 116, are sufficient authority for us to hold the defendant responsible, as the “proprietor of a hotel f within the meaning of the act of 1855, Sess. Laws of 1855, ch. 421.

There was no error in the instruction to the' jury in respect to the notice printed at the head of the register. There was no proof that it was seen or assented to by the plaintiff, and without such proof, it was not his contract (Ramaley v. Leland, 6 Robt., 358). Besides, the court left it to the jury to say whether the plaintiff had agreed to it.

So far as the facts in this case oorrrespond with those in Hyatt v. Taylor, 43 N. Y. 258, we are controlled by that decision. That case involved a construction of a Hew Jersey statute, which like our statute, relieved proprietors of hotels from liability, for the loss of “ money, jewels or ornaments,” when the proprietors had provided a safe for the deposit of such articles. The articles which had been stolen were, “money, two gold studs and two gold pens,” and two of them, namely, the money and gold studs, were very properly regarded as being within the letter of the statute. But the court did not, in terms, decide that gold pens, a part of the property lost, were either jewels or ornaments.

The principal question, which engaged the attention of the court in that case, was whether the true construction of the act, did not confine the liability of hotel proprietors to sums of money, in excess of what was a needful amount for the ordinary traveling expenses of the guest; and, therefore, the other articles alleged to have been taken, were not considered by the court.

In the case before us, the articles for which the plaintiff had a recovery were a “ gold watch and gold chain.”

Statutes in derogation of the common law are to be strictly construed,' and not extended beyond their express words or clear import (Millered v. Lake On. An. & N. Y. R. Co., 9 How. Pr. 238 ; McCluskey v. Cromwell, 11 N. Y. 593), and the question in this case is, whether the articles, for which a recovery was had, are included, in the terms or meaning of the statute.

In two cases (Ramaley v. Leland, supra, and Gile v. Libby, 36 Barb., 70), it has been held that such articles are not among those enumerated in the statute ; and in the uncertainty in which ihe question is left by the decision in Hyatt v. Taylor, we should, I think, follow those cases.

I am aware that in the opinion in the court below, in Hyatt v. Taylor (see 51 Barb., 632), language is used which seems necessarily to bring these articles within the definitions of “jewels or ornaments,” and no discrimination is made in giving effect to the statute between those articles and “money.” But while the learned justice, who delivered the opinion below, held that a landlord is not responsible for the loss of the “money and things” of Ms guests, he also admitted that the legislature intended to give to the former, protection only to the extent of the language used. And Mr. Justice Woodruef, in the appellate court, says (p. 261) there is nothing in the statute itself indicating any intent other or less extensive than the unequivocal language imports.

While it is borne in mind that in Hyatt v. Taylor, the only question was, whether a guest could recover for the loss of a greater sum than was found needful for his traveling expenses, it will readily be seen that no other or further construction of the statute was necessary, than would enable the court to decide that question.

So far then as that case goes, the question in tMs case may be considered as open, and may, therefore, rest upon the authority of the two cases already cited.

I will merely add in its support, the definition of “jewels” taken from Webster, “an ornament of dress in which the precious stones form a principal part.”

As a conclusion, I am of opinion that a watch and chain are not, within the meaning of the statute, a jewel or an ornament, for the loss of which a hotel' proprietor is protected by the statute.

The judgment should be affirmed.


text:
    BERNARD SVENSON, Plaintiff and Respondent, v. THE ATLANTIC MAIL STEAMSHIP COMPANY, Defendant and Appellant.
    The defendant employed a lighter to take the cargo of one of its steamships; the crew of the lighter receiving the same alongside of the steamship from the persons employed on board the steamship by the defendant, and through the negligence of the latter persons the plaintiff was injured. Plaintiff was employed by the owner and master of the lighter.

      Held, that the rule that the common master of several servants, employed in the same service is not responsible for an injury to one of said servants caused by the negligence of another of such servants while engaged in a common employment, has no application to this case, as the proofs establish that the persons on the steamship discharging cargo and those on the lighter receiving the same were employed in different and separate service.
    The defendants admitted that they were the owners of the steamship, and had charge and control of, and managed the same at the time the injury was done, and that plaintiff was on board the lighter in unloading the steamship, but denied that the plaintiff was injured by the negligence of defendants or servants. The only evidence coupled with this admission that connected defendant with the injury, was the fact, that persons on board the steamship were engaged in dropping the bales from her deck upon the deck of the lighter, where plaintiff was engaged, and was injured by the bales that were carelessly handled and dropped from the steamship. There was no proof as to who those persons were who were thus engaged on board of the steamship, nor as to their relations to the steamship or the defendant.
    The facts of this case, tending to r'aise a presumption of law against defendant, cannot be distinguished from Norris ». Kohler (41 H. Y. 43).
    The defendants’ admission of ownership and management, was enough to charge them for the negligent acts of all persons on board, upon the authority of Norris «. Kohler (cited above).

      Before Barbour, Ch. J., Monell, and Jones, JJ.

      (Decided April 29, 1871).
    Appeal from a judgment and order.
    The action was for personal injuries sustained by the plaintiff, caused by the alleged negligence of the defendants’ servants.
    The complaint alleged that the defendants were the owners of the steamship “ Columbia.” That the plaintiff was on board the lighter “Florence,” engaged in unloading the steamship, when through the negligence of the defendants’ servants, a bale of tobacco was dropped upon the neck and shoulders of the plaintiff, and another fell upon and broke his leg.
    The defendants admitted they were the owners of the steamship, and had full charge and control of, and managed the same. They also admitted that the plaintiff was on board the lighter, engaged in unloading the steamship, but denied that the plaintiff was injured through the negligence of • the defendants’ servants. They further alleged that at the time of unloading the steamship, the plaintiff was in the defendants’ employment as their servant. They also alleged negligence on the part of the plaintiff.
    The action was tried before Mr. Justice Feeedman and a jury.
    A. motion was made at the beginning of the trial to dismiss the complaint, on the ground, that the plaintiff and the person causing the injury were fellow servants, engaged in a common employment. The motion was denied, and the defendants excepted.
    The motion was renewed at the close of the evidence, on the grounds ; first, of negligence on the part of the plaintiff; and second, of no proof that the accident was caused by the defendants. The motion was again denied, and the defendants excepted.

      The court submitted both these questions to the jury, and refused to charge that there was no evidence to connect the defendants with the injury. It also refused to charge that the plaintiff, knowing the manner in which the bales of tobacco were raised from the hold of the steamer, landed on the staging, and then rolled upon the deck of the lighter, was guilty of negligence in not avoiding the injury complained of, and therefore could not recover.
    Also, that it appeared from the proof, that the plaintiff and the person causing the injury were fellow servants, and therefore the plaintiff could not recover.
    The defendants excepted to the refusals.
    The court did charge, that the jury must be satisfied that the plaintiff in no way contributed to the injury ; and that it was caused solely by the negligence of the defendants’ servants, while engaged in unloading the steamship.
    The plaintiff had a verdict. The defendants moved for a new trial on the judge’s minutes, which motion was denied, and judgment entered upon the verdict.
    The defendants appealed from the order and judgment.

      Thomas M. Wheeler, for appellant.
    The judge erred in not granting the motion to dismiss the complaint on the ground that the plaintiff and the person causing the injury were fellow servants, engaged in a common employment, and therefore the plaintiff could not recover (Folio 2).
    The allegation in the complaint is “That on the said 27th day of September, 1869, the plaintiff was on board the lighter named the Florence, engaged in unloading said steamship Columbia, in the harbor of New York, and that at such time and place, through negligence of defendant’s servants, a bale of tobacco was dropped upon the neck and shoulders of plaintiff, and. - another bale upon his leg.” Folios 74 and 75. That is, the plaintiff and defendant were engaged in the common employment of unloading the steamship Columbia.

    “ The general rule that an employer is not responsible for injury occasioned by another employee engaged in the same general undertaking, is firmly settled in this State.” Boldt v. N. Y. Central R. R. Co., 18 N. Y. 433.
    “ The general rule that when several persons are employed in the same general services, and one is injured by the carelessness of another, the enployer is not responsible, is now to well settled to be disputed.” Russell v. Hudson River R. R. Co., 17 N. Y. 136.
    It is not necessary that both should be paid by the same employer, to make them fellow servants.
    “ Servants who are employed and paid by one person may, nevertheless, be ad hoc the servant of another in a particular transaction ; and that too when their general employer is interested in the work.” Shear. & R. Neg. 89.
    “When the person employed is in the exercise of a distinct and independent employment, and not under the control and supervision of the employer, the re-' lation of master and servant does not exist” (Linton v. Smith, 8 Gray (Mass.) 148.)
    “ It is objected that Ladd being employed by the plaintiff to work on the road, under the direction of the defendant, was the servant of the plaintiff, and that the defendant is not responsible for his acts. But we think it very clear, that while Ladd was át work on the highway, under the control of the defendant, he must be considered as the servant of the defendant, and that it is immaterial whether he was employed by the plaintiff to work out his highway tax, or by any other person” (Elder v. Bemis, 2 Metc. (Mass.) 604. See Blake v. Ferris, 5 N. Y. 58 ; Murphy v. Caralli, 3 Hurl. & C. 462).
    The plaintiff and defendant were therefore fellow-servants, employed in the same general undertaking. If the lighter had engaged to unload the stamship, then the person causing the injury was in the employment of the owner of the lighter ; if the defendant had employed the lighter, then the plaintiff was an employee of the defendant; in either case the plaintiff and the person causing the injury were under the control of the same master, and plaintiff cannot, therefore, recover.
    The judge erred in not granting the motion for a nonsuit, on the grounds:

      First. That the evidence proved that the. plaintiff had been guilty of negligence, which contributed to the accident.

      Second. That the defendant had not in any way been connected with it. There was no proof that the accident was caused by the defendant, or that the person doing the injury was a servant of the defendant or in its employment.
    There was no dispute that the lighter and the men on her were engaged in unloading the steamship.
    The definition of unload is “to take, remove, or put out of a vessel.” (Worcester Die). .

    Therefore the lightermen were to remove and take out the tobacco from the hold of the vessel, and there being no evidence to the contrary, it must be assumed that the men employed in removing the goods from the hold of the steamer, which would include the man on the platform, were the servants of or in the employ of the lightermen.
    Look at the testimony of James Mauson :
    Q. You were captain of the barge Florence ?
    A. Yes, sir.
    Q. On the 27th September, 1869 ?

      A. Yes, sir.
    Q. Engaged in unloading the steamship Columbia, down at quarantine, of tobacco.
    A. Yes, sir (Folio 31).
    Q. Who employed these men ?

    A. I hired them. Picked out my own men when I wanted them.
    Q. And paid them ?
    A. Yes, sir (Folio 32).
    Throughout the testimony the person said to have caused the injury is referred to only as the man on the platform. Had such been the allegation in the complaint, a demurrer to it, as not stating facts sufficient to constitute a cause of action, would have been sustained.
    In Blackwell v. Wisewell, 24 Barb. 356, the allegation was that one Maher was drowned through the negligence of “ the man” rowing and having charge of the skiff. The complaint was demurred to as not stating facts sufficient to constitute a cause of action. The demurrer was sustained. The court said, “ The allegation in the complaint is that Maher was drowned through the negligence of ‘ the man’ rowing and having charge of the boat. Whose man he was does not appear B

    In this case, then, it not appearing whose man the man on the platform was, the verdict cannot be sus-, tained. The plaintiff must show that the relation of master and servant existed between the “man on the platform ” and the defendant.
    “The defendants, therefore, without evidence of such relation ”—that of master and servant—“ subsisting between them and the porter”—the person causing the injury—“could not upon any principle, be rendered liable for the consequences of his negligent acts while so engaged” (Stevens v. Armstrong, 6 N. Y. 442).
    The true test is to ascertain the relation between the party charged and the party actually doing the injury. Unless the relation of master and servant exists between them, the act of one creates no liability in the other (Blake v. Ferris, 5 N. Y. 55).

    But it is said that the answer admits that the defendant owns, controls and manages the steamship, which was being unloaded, and that this is an admission that the man on the platform was in the employ of the defendant.
    It is contended that there is no such admission, nor is there any presumption of law that the man on the platform was in the employ of the defendant. But if it is so, then the defendant had control and management of the unloading of the steamship, and the plaintiff, being engaged in the unloading, was a servant of the defendant. If there is a presumption that the man on the platform was a servant of the defendant, there is also a presumption that the plaintiff was a servant also of the defendant, and therefore he cannot recover. But there is no such presumption in law.
    In the case of Blackwell v. Wiswell, 24 Barb., 356 —before cited—the court says, “ It is alleged that the skiff was run at the defendant’s ferry, and pursuant to the defendant’s license. But this allegation is not sufficient to warrant the inference that the man rowing and having charge of the skiff was in the defendant’s employ.”
    The case of Norris v. Kohler, 41 N. Y. 42, does not apply to this case. In that case the injury was caused by a horse and wagon. The court said, “ The property being proved to belong to the defendant, it is urged that a presumption arises that it was in his use, for his benefit, and on his own account;” and it was therefore held that the driver was a servant of the defendant. It may be that a horse and wagon could not be in possession of the driver without the consent of the owner. But that doctrine would not apply to a stea mship, where a large number of men are employed; but if the same presumption arises in the case of a steamship as in the case of a horse and wagon, then all persons using the steamship are servants of the owner of the steamship ; and in this case the lightermen would be servants of the defendant.
    Again, the man on the platform was under the direction and control of the captain of the lighter. See Captain Hanson’s testimony, fol. 35.
    When a man is employed in doing a job or piece of work with his own means and his own men, and employs others to help him or to execute the work for him, and under bis control, he is the superior who is responsible for their conduct, no matter for whom he is doing the work (Blake v. Ferris, 5 N. Y. 58.)
    But even had the man on the platform been one of the crew of the steamship and been paid by the defendant—on which point there is no testimony, and which might easily have been proved by the plaintiff, had such been the fact—still, being engaged in the business of unloading the steamship, he was in the employment of the lighterman, and the defendant is not responsible for his acts (See Shear. & R. on Neg. 89 ; Linton & Smith, 8 Gray (Mass.) 148 ; Elder v. Bemis, 2 Metc. (Mass.) 604 ; Blake v. Ferris, 5 N. Y. 58).
    In Murphy v. Carilli, 3 Hurl. & C. 462, the defendant’s servants piled in an improper manner some bales of cotton under the direction of the warehouseman, who had exclusive control over the mode in which they should te piled. The bales fell and injured the plaintiff. Held, that the defendant was not liable, as his servants, in doing the act, were the servants of the warehouseman.

      The immediate employer of the agent or servant through whose negligence an injury occurs, is the person responsible for the negligence of such servant. To him the principle respondeat superior applies.

      There cannot be two superiors severally responsible in such case (Blake v. Ferris, 5 N. Y. 49).
    To the first ground for a motion for a nonsuit, it appears from the evidence that plaintiff’s negligence contributed to the injury.
    It appears from the testimony that four bales at a time, being hoisted from the hold of the steamship by steam-power, were landed on the platform, the bales taken from the sling, rolled to the end of the platform, a distance of twenty feet, and then thrown on the deck of the lighter. That from five to ten minutes would elapse after one lot of four bales were brought up before another lot would be brought up. That it would take, one or two minutes to pile the bales on the lighter after they were thrown on the deck. The plaintiff had been working on the lighter all day, knew how they were thrown on to the lighter, and had sufficient time to get out of the way, and had he exercised ordinary care and diligence could have avoided the injury.
    ' It appears, moreover, that the lighter was nearly loaded, leaving a space of eight or nine feet; on the rest of the deck the bales being piled up seven or eight bales high. This state of facts called upon plaintiff for a great degree of prudence and carefulness in avoiding the bales which were thrown down. He should not have relied entirely upon the man' on the platform singing out. He should have used his eyes and ears. Had he used his eyes he could have seen the bale hoisted from the steamer’s hold, and had he used his ears he could have heard the noise of the engine and of the ropes and tackle used in hoisting the bales, and thus have avoided the injury.
    His own negligence lias clearly contributed to the injury, for the plaintiff was in such a position that he should have exercised more than ordinary care in avoiding injury, and he must show affirmatively that he exercised such.
    “The measure of precaution which ordinary prudence suggests, is in due proportion to the probability of danger” (Ernst v. Hudson R. R., 35 N. Y. 27).
    The case in 1 Allen, 187, 190, lays down as the undoubted law (of Mass.), that the plaintiff must show by affirmative proof that he was in the “exercise of due care,” and for failure of such proof the court should as it did nonsuit (Wilds v. Hudson River R. R. Co., 24 N. Y 434).
    Crossing a railroad where five different tracks ran parallel, after looking one way only—held, in the case of a man of full age, conclusive evidence of negligence (Bieseigel v. N. Y. Cent. R. R., 33 Barb. 429. See same case, in 40 N. Y. 9).
    The counsel also cited and reviewed the following cases in support of the point, that plaintiff’s negligence contributed to the injury, and the motion for a nonsuit was improperly overruled: Wilcox v. Rome, Watertown & Og. R. R. Co., N. Y., 361, 365 ; approved in Havens v. Erie R. R. Co., 41 Id. 299 ; to same effect, Nicholson v. Erie R. R. Co., Id. 525 ; Baxter v. Troy & Boston R. R. Co., Id. 503, 505; Wilds v. Hudson River R. R., 23 How. Pr. 493 ; 24 N. Y. 432 ; Shear. Neg. 39).
    The judge erred in refusing to charge the jury that the plaintiff, knowing the manner in which the bales were raised from the hold of the steamer, landed on the staging, and then rolled upon the deck of the lighter, was guilty of negligence in not avoiding the injury complained of, and therefore could not recover.
    The judge erred in refusing to charge that it appeared from the proof, that the plaintiff and the person causing the injury were fellow servants, and therefore could not recover. Folio 65.
    Servants are engaged in a common employment when each of them is occupied in service of such a kind, that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting their employment, that it may probably expose them to a risk in case he is negligent (Shear. Neg. 133).
    The case should have been decided by the judge, and not left to the jury.
    When the direct fact in issue is established by undisputed evidence, and such fact is decisive of the cause, a question of law is raised, and the court should decide it. The jury have no duty to perform (Shear Neg. 11, note 3 ; Dascom v. Buffalo & State Line R. R., 27 Barb. 228 ; Beiseigel v. N. Y. Cent. R. R., 33 Id. 432).
    Another preliminary point to be passed on is the claim that the question of negligence belongs peculiarly to the jury, and that cases involving that question should never be taken from them, to be decided by the court. To this position it should be answered that there is no case known to the law in which an appellate court has not and does not, on proper occasions, exercise the power of setting aside the verdict of a jury, not merely when it is against evidence, but when it is clearly against the weight of evidence. And no court can be guilty of the absurdity of holding that, in such a case, it would not have been competent for the judge who tried the cause, either to nonsuit the plaintiff or direct a verdict in his favor, as -the case might have required. No legal principle compels him to allow a jury to render a merely idle verdict (Wilds v. Hudson River R. R. Co., 24 N. Y. 433).
    Hilton, Campbell & Bell, for respondent.
    The principle that a master is not liable to one servant for the torts of another in the same employment, does not apply to this case, the servants being employed by different masters, the plaintiff being in the employment of the owners of the lighter, the person throwing the bale of tobacco, in the employment of the defendants.
    This question is fully discussed and settled in Young v. N. Y. Cent. R. R. Co., 30 Barb. 229.
    In that case, the plaintiff, being employed by a contractor to repair a railroad bridge, was injured by a passing train; held that he could recover from the railroad, as there was no privity between him and the defendants, he not having been employed by the defendants. In Smith v. N. Y. & Harlem R. R. Co., 19 N. Y. 132, the court says :
    “The rule applies only where the action is brought for an injury to a servant or agent against the principal, by whom such servant was himself employed” (See. also Story on Agency, ed. of 1863, 6th ed., §§ 453-9 ; also English case of Abrahams v. Reynolds, 5 Hurl. & N. 143—a case exactly like this).
    Abrahams, the plaintiff, was a servant of J. & Co., who were employed by Reynolds, the defendant, to carry cotton from a warehouse ; one of Reynolds’ porters, in lowering the bales of cotton from the upper floor of the warehouse, negligently let one fall upon the plaintiff; held, that he could recover from Reynolds, there being no privity between him and Reynolds, he being employed by J. & Go.

    This case was decided unanimously by the full bench of the Exchequer.
    There was no contributive negligence on the part of the plaintiff.
    He was engaged in doing his duty, saving a bale of cotton about to fall overboard. The custom was to give notice before throwing down new bales ; the man on the steamship could see the plaintiff on the deck of the lighter; no notice was given;. the plaintiff was justified in supposing that he was seen, and that no bales would be thrown down, until he could get out of the way.

      The question was properly left to the jury, and their decision is conclusive (Ernst Hud. R. R. R. Co., 35 N. Y. 9 ; Beisiegel v. N. Y. C. R. R. Co., 34 Id. 622).
    The defendant was sufficiently connected with the tort.
    The answer admits that the defendant owned, had charge and control of, and managed the steamship being unloaded. The evidence shows that while unloading that vessel, a man upon her platform threw down the bale of tobacco that injured the plaintiff.
    The presumption is, that he was in the employment of the defendant (Norris v. Kohler, 41 N. Y. 42 ; Holbrook v. U. & S. R. R., 12 Id. 242; Johnson v. H. R. R. R. Co., 20 Id. 65 ; Althorf v. Wolf, 22 Id. 355).
    The testimony of James Mauson, the captain of the lighter, shows with sufficient clearness that the man who threw down the bale was not in his employment, but was a servant of the defendant.
    At folio 33, he states the custom of unloading vessels, using the word “they ” in regard to the men employed by the steamships, and the word “we” in regard to his lightermen.
    And the same appears in all the testimony of the other witnesses.
    The plaintiff swore that there were four men on the lighter (fol. 9), all of whom appeared as witnesses for him, so none of them could have thrown the bale.
    The evidence certainly is sufficient to raise a presumption that the man who threw the bale upon the plaintiff was in the employment of the defendant, within the rule as laid down in Norris v. Kohler, 41 N. Y. 42 ; Althorf v. Wolf, 22 Id. 355.
    -If the fact had- been otherwise, the defendant could easily have proved it.
   By the Court.—Monell, J.

The rule, that the common master of several servants, employed in the same service, is not responsible for any injury to one of such servants, caused by the negligence of another of such servants, while engaged in a common employment, can have no application under the proof in this case.

The evidence was not very clear, but enough, I think, to show that the persons engaged on board the steamship in hoisting the tobacco and discharging it upon the lighter, were employed in a different and separate service from that in which the plaintiff was engaged, and by a different and separate master. That such persons were the servants of the defendants, was not established by any direct proof, other than the admission of the defendants, that they were the owners of the steamship, and had charge and control of, and managed her, at the time of the injury.

The lighter belonged to other owners, and was engaged to lighten the cargo of the steamship. She was in charge of Captain Mauson, who employed the plaintiff, as one of his workmen, to assist in receiving the steamship’s cargo. The lighter was placed alongside the steamship; the cargo was taken out of the steamship by persons other than the lighter’s crew, and was received by such crew on board of the lighter. The persons on board the steamship were not employed by the captain or owners of the lighter, nor were they, in any sense, subject to their direction, nor under their control; nor was the plaintiff in any sense under the direction or control of the defendants.

No evidence was given on the part of the defendants, and the plaintiff and Captain Mauson each testified, that the plaintiff was employed by the owners of the lighter, through the captain.

The service performed on the steamship and lighter, respectively, was distinct and separate. The crew of the former hoisted the tobacco from the hold upon deck, and then placed it upon the platform over the lighter, and then let it drop upon the deck of the lighter. The crew of the lighter received the bales as they came down from the steamship, and stowed them upon the deck of the lighter.

The rule contended for by the defendants’ counsel, cannot, therefore, have any application here. The plaintiff was not the defendants’ servant, and if the person or persons by whose negligence he was injured, were the servants of the defendants, they are liable.

The cases to which we were referred, were all cases of a common employer, and the principle they establish is familiar; but I think I have shown that it cannot be applied to this case.

A question of perhaps more difficulty is presented by the motion to nonsuit on the ground that the evidence did not connect the defendants with the injury.

The only evidence, coupled with the admission already referred to, was that persons on board the steamship were engaged in dropping the bales of tobacco from her deck upon the deck of the lighter. There was no proof, either way, who the persons were, nor what relation they sustained to the steamship or to the defendants. And, therefore, except for the aid which a presumption of law furnishes, the case would be destitute of evidence even tending to fasten a liability upon the defendants.

But the facts of this case, as tending to raise a presumption of law against the defendants, cannot, I think, be distinguished from Norris v. Kohler, 41 N. Y. 42.

In that case there was only some slight evidence that the runaway team was “owned,” by the defendant, and there was no proof that the persons in charge of the team were in the employment of the de-' fendant, or sustained any relation whatever to him.

Upon the mere proof of “ ownership of the team,” the court held that a presumption arose, “that it was in use for his benefit, and on his account.” Thus applying the principle, that, the ownership of property draws to it the possession, or rather the right to the possession, to a case charging the owner with the tortious act of a person, other than the owner, while in the possession of and using such property.

The defendants admitted themselves to be the owners of the steamship, and upon the authority of Norris v. Kohler, that was enough to charge them for the negligent acts of all persons on board.

Upon the question of the defendants’ negligence, there was enough to sustain the verdict.

The evidence was, that on any other occasion the persons on the steamship, before dropping a bale upon the lighter, cried out “stand from under,” or “look out.” Such warning was omitted when the plaintiff received his injury. The plaintiff could not see the impending peril, and had á right to wait for the accustomed signal, before escaping to a place of safety.

There was, therefore, no negligence on his part.

■ I think the judgment and order should be affirmed, with costs.


author: By the Court.—Monell, J. Freedman, J. (dissenting).

text:
    DUBY GREEN, Plaintiff and Respondent, v. GUSTAVUS RICE, Defendant and Appellant.
    The application of the following rule to a case where the witness was a party to the action, considered and discussed.
    ‘ Whenever a party by the nature of his cross-examination of a witness called by the adverse party, makes the person examined his witness, and he is interrogated and examined in regard to a matter-that is merely collateral and not material to the issue, the party examining the witness cannot afterwards impeach him by proof of declarations of witnesses inconsistent with the testimony given by him.

      Held, by the court, that possibly this rule may be applied to the case of a party being examined as a witness, yet reasoning to the contrary. On the trial of the case at bar, the plaintiff, being on cross-examination, was questioned in regard to new matter by defendant (and which was afterwards held to be merely collateral by the court) and made answer thereto.
    Afterwards, the defendant called a witness to contradict the testimony and statements of the plaintiff, wherein defendant had made plaintiff his witness. On objection the court below held that the matter being merely collateral, plaintiff’s testimony could not be impeached by such proofs.
    Held, that the first witness being "a party to the action and the question propounded being of a character that allowed of an answer that might contain some admission or declaration of the defendant, that was pertinent and material to the issues, it was error in the court below to rule that the question should not be answered.
    Before Monell, McCunn, and Freedman, JJ.

      Decided April 1, 1871.
    The action was to recover first the snm of five hundred dollars, for extra work done and performed by the plaintiff for the defendants, and second, upon a special contract made by the defendants to pay the plaintiff one hundred dollars a week, during the time the work in the defendants’ distillery was suspended.
    Bice was the only defendant served. He specifically denied the alleged partnership between himself and the other defendant Loeb, and he also generally denied all the allegations in the complaint.
    On the trial before Mr. Justice Spencer, and a jury, the plaintiff, who was examined as a witness on- his own behalf, testified upon his cross-examination as follows :
    Q. From the time you left the distillery in Hovember, when they ceased work, did you ask anybody for work \

    A. I didn’t ask anybody for work, because I was there, and I would stand where they promised me.
    Q. Do you know the gentleman standing up there —Weinfeldt?
    A. Yes, sir.
    Q. Did you ask him for work %

    A. No, sir, never in my life (a person in the court room arises by request).
    Q. Do you know this man \

    A. Yes, sir.
    Q. Did you ever ask him for work during-that time \

    A. No, sir.
    Q. During all that time, you say, you did nothing at all from November until Mr. Briggs came %

    A. I did not.
    Weinfeldt, when examined as a witness by the defendant, was asked the following question :
    Q. During the time that distillery was not at work, do you remember whether Mr. Green called on you for any purpose ?
    The plaintiff’s counsel objected on the ground that the question was to collateral matter absolutely, and as collateral matter, the question having been asked the plaintiff, the defendants had made him their witness.
    Defendant’s counsel said, the question was also to affect the credibility of the witness.
    The court sustained the objection and the defendant excepted.
    The plaintiff had a verdict, upon which judgment was entered.
    The defendant appealed.
    A motion was made at special term for a new trial, on the ground of surprise and newly discovered evidence, and denied.

      The defendant appealed.
    The two appeals were heard together.
    Mr. O. L. Stewart, for the appellant.

      Mr. S. Hirsch, for the respondent.
   By the Court.—Monell, J.

The ground of the objection to the question put to the witness Weinfeldt, was, that it was to collateral matter, which had been elicited from the plaintiff, upon his cross-examination by the defendant, whereby the defendant had made the plaintiff his witness, and therefore, as must follow, although not so stated in the objection, could not impeach him.

It is not necessary, perhaps, to define precisely what is meant by the statute which subjects the examination of a part) as a witness in his own behalf, to the same rules of examination as any other witness. In a general sense, the examination must be conducted as in other cases, and it is possible, that whenever the adverse party, by the nature of the cross-examination, has made the party examined his witness, as he would have done in the case of any other witness, the same rule applies, and the examined party cannot be impeached as to such testimony. So that if a party is interrogated and gives evidence on a cross-examination as to a merely collateral matter, he cannot be impeached by proof of declarations inconsistent with such evidence. So far, I think, the rules regulating the examination, are alike, and the learned justice regarding the matter which had been elicited upon the cross-examination of the plaintiff as collateral, and therefore, immaterial, would not allow any impeaching testimony.

Had the witness not been a party to the action, I should have no difficulty in sustaining the decision. The . plaintiff had sued on a special contract, whereby he was to receive one hundred dollars a week, for all the time the business of the distillery was suspended ; under such a contract he was not bound to seelc other employment, and any evidence that he did not seek other employment, was wholly immaterial, unless he succeeded, when the defendants might be entitled to a credit for the amount he received.

But this was a case of a party under examination, * and the question propounded to the witness allowed of an answer containing an admission or declaration of a party to the action, and as such, it was clearly, I think, a proper question. It is always competent to prove the declarations of a party as to any thing pertinent to the issue ; and when a question put to a party calls by its answer for an admission, it is not to be affected by any of the rules relating to the impeachment of witnesses. It is impossible to say what would have been the answer to the question put to the witness in this case, but it is easy to see, that the answer to that and another question which might have followed it, if the first had been allowed to be answered, might have contained a material and important declaration of the plaintiff.

But without speculating upon what might have been the answer, it is enough that the question was proper, as proving or tending to prove a declaration of the party, the materiality of which could only be ascertained by the witness’ answer, and upon the exception to the decision of the learned justice, we must hold it to have been erroneously excluded.

For this reason the judgment must be reversed, and a new trial granted.

The motion for a new trial on the ground of surprise and newly discovered evidence, was properly disposed of at the special term. The evidence claimed to be newly discovered was cumulative, and the grounds of the alleged surprise not sufficient to authorize us to set aside the verdict.

That order should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Freedman, J. (dissenting).

The question put to the witness Weinfeldt, was not only irrelevant to the issues framed by the pleadings, but so broad, that its exclusion did not, in my opinion, constitute error.

If, as my learned brethren have conceded, the materiality of the evidence sought to be elicited could only be ascertained by the answer of the witness, it was the duty of defendant’s counsel to apprise the court of what he intended to prove, and the precise ground upon which he claimed the evidence to be material, which he failed to do. An exception to the exclusion of a single question, so broad and general that its materiality could not be readily seen, and which was not followed up, should never be held error sufficient, per se, to work the reversal of a judgment, on appeal, unless it most clearly appears that the court below understood the ground upon which the question might have been admitted.

The judgment should be affirmed, with costs.