Opinion
Argued November 18, 1918
Decided December 10, 1918
Alfred L. Becker and Frank A. Abbott for appellant. John B. Richards for respondent.
The defendant had a contract for enlarging the Erie canal near Spencerport to the dimensions required for the barge canal and at the time and place of the accident herein involved had partially completed its contract. It made excavations "in the wet," that is, underneath the surface of water. In the course of its work and at the time of the accident the bank on the towpath side of the canal had been changed and set back somewhat and the excavation upon the other side had been carried a considerable distance beyond the line of the original berme bank, and so far as surface indications were concerned there was a waterway for travel much wider than that comprised within the lines of the original canal. As a matter of fact for a considerable distance beyond the original channel on the berme side of the canal the excavation had been made to a depth which rendered passage for a canal boat perfectly safe, with the exception that at one point estimated from about thirty to fifty-five feet beyond the original channel there had been left a strip of bottom ten or fifteen feet long, more or less studded with boulders at its top, and coming so near to the surface of the water that an ordinary canal boat would strike thereon.
Under its contract defendant was required to so conduct its work "as not to interfere with the navigation of the present (old) canal * * * between the 15th day of May and the 15th day of November of each year," and it was required to take "such precautionary measures as may be necessary * * * to guard against the interruption or injury to navigation."
At night in the month of August plaintiff's canal boat, loaded with grain, was being pushed by a steam-propelled boat through the canal in the locality in question, under the guidance of an experienced and qualified pilot. As the latter steered to the berme side in order to pass other boats coming from the opposite direction, plaintiff's boat was shoved upon the strip of bottom above described with the result that its bottom was broken and its cargo substantially damaged. As already indicated, there is some difference in testimony as to the exact location of this accident as compared with the original line of the channel on the berme side, but as I understand the evidence it was not less than thirty nor more than fifty-five feet distant therefrom and was in about the center of the waterway as it then appeared, taking into account the enlarged portion of the canal created by defendant's excavations, and there was nothing in the way of buoys or lights to mark the original lines of the canal or the location of this particular strip of bottom which was dangerous to navigation.
Plaintiff recovered a verdict because of defendant's alleged negligence, and because of the latter's claims of error on the trial we are presented with the questions what were the rights of the respective parties and where was the fault, if any, which led to the accident.
In attempting to define these rights the trial court charged, as outlining those of the plaintiff, that "The navigators of the Hudson had the right to assume, in the absence of buoys, lights or other indications, that the waterway was safe, certainly to a reasonable extent beyond the exact lines of the old canal." And it further charged as defining the obligations and liabilities of the defendant that if the boat struck the obstruction which has been referred to and that this was what caused it to sink, "then the plaintiff has made out his case so far as the defendant's negligence is concerned." And further, as accentuating this view, the court refused to charge "that the defendant was not bound to keep any portion of the work under improvement in condition for navigation, which was not included within the navigable portion of the Erie Canal," and also that if the place where the boat sank "was merely a portion of the work under improvement, where the excavation was not complete, negligence cannot be imputed to the defendant solely for a failure to remove the materials therefrom to a depth sufficient for navigation."
Thus it was in effect held as matter of law that the plaintiff's boat was rightfully and without negligence where it was although a substantial distance beyond the lines of the Erie canal whereon it was traveling and that defendant as matter of law was guilty of negligence because in the course of and while still engaged in making excavations it allowed this uprising strip of bottom to exist.
We think that these instructions were altogether too favorable to the plaintiff and very unfavorable to the defendant. In our opinion the trial court instead of defining the rights and obligations of the parties by rigid rules of law as he did, should have permitted them to be determined by the flexible judgment of the jury under those tests of reasonable conduct and ordinary prudence which are so familiarly applied to the solution of such situations as arose here. ( Davidson S.S. Co. v. United States, 205 U.S. 187.) Take the case of the plaintiff to whom is attributable the conduct of the pilot. The jury could have said upon the evidence as now presented that the latter was chargeable with knowledge that the old canal at this point was in process of being widened to the dimensions of the barge canal and that he was steering plaintiff's boat beyond the lines of the original canal into the space of new construction where it was fairly to be apprehended that there might be incomplete excavations and resulting dangers to navigation. If the jury did thus determine they could have found that this was taking unreasonable chances and that contributory negligence was chargeable to plaintiff which barred a recovery. But again, while they might have taken this view, we think the evidence also permitted them to take a different one which alike would exonerate plaintiff from the imputation of contributory negligence and impose upon defendant responsibility for the fault of negligence. They might have said that with the obliteration of old lines by new construction a pilot ought not to be charged with knowledge of the exact location of those old lines; that there was nothing in the appearance of the waterway to indicate that the work of excavation was uncompleted or to make a man of reasonable prudence apprehensive that if he steered a short distance beyond the line of the old channel he would encounter a small uprising and dangerous space in the midst of what was otherwise perfectly safe navigation, and, therefore, that warning ought to have been given of this threatening condition by buoys, lights or other proper means. If their minds traveled in this direction the jury could have found the defendant to have been negligent.
Without attempting of course to detail all the circumstances or to formulate the exact language in which instructions should have been given to the jury, the foregoing is a statement of the principles which should have underlaid and governed those instructions. As has been pointed out, the ones which were actually given were far away from them and were prejudicial to an extent requiring a reversal of the judgment.
Some other questions are argued which may be briefly answered for guidance upon the new trial.
It was not error to exclude evidence of the witness Gallagher concerning alleged statements made by the witness Gillson that the accident to plaintiff's boat really happened at another place. Gillson had no personal knowledge and could give no evidence in respect of this subject. Any statements he may have made were not a subject of proof.
It was of course improper to instruct the jury that they must add interest to the amount, if any, which they should award as damages for the injury to plaintiff's boat.
The judgment should be reversed and a new trial granted, with costs to abide the event.
COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Judgment reversed, etc.