Statement of case.

an action in equity cannot be maintained, and that this objection is available on demurrer. (11 Wend., 336; 7 Paige, 602, 603, and cases before cited.)

The judgment appealed from should be reversed and judgment rendered for the defendant on the demurrer, with costs, but with leave to the plaintiff to amend his complaint on the payment of costs of the demurrer and appeals in the court below and in this court, within thirty days from the notice of the filing of the remittitur in the court below.

CHURCH, Ch. J., GROVER and FOLGER, JJ., concur.
PECKHAM, J., concurs on first ground stated.

ALLEN, J., concurs on second ground.
Judgment in accordance with opinion.

ROBERT F. SILLIMAN et al., Appellants, v. EDWARD LEWIS et

al., Respondents.

If by the want of proper lights upon a vessel, those in charge of another
vessel are deceived and a collision happens, this is such contributory
negligence as will prevent the owner of the former from recovering for
the injuries resulting, but if those in charge of the latter knew the true
state of the facts, and with reasonable care could have avoided the
injury, the absence of the proper lights is no defence.

In such a case, however, the presumption of contributory negligence
would arise in the absence of proof of facts to repel it, but if there is
evidence tending to repel this presumption the jury is the only proper
tribunal to weigh and determine the proper effect of it. Where a ves-
sel is in tow of another, the owner of the former is not responsible for
the negligence of those in charge of the latter.
Plaintiffs' barge and another were in tow immediately in the rear of a line
of canal boats forming part of the tow, and about ten rods distant from
them; instead of having the lights required by the navigation acts of
congress upon a vessel being towed, its lights indicated that the barge
was at anchor. Defendants' schooner attempted to pass between the
barge and the canal boats; there was ample room to pass in the chan-
nel outside of the tow, and there was no apparent necessity in the sud-
den change in the schooner's course. Held, there was evidence from
which the jury might have found that those in charge of the schooner

49 379

161 322

49 379 j171 1159

Statement of case.

knew the barge belonged to the tow, and that the attempt to pass between it and the canal boats was negligence. A nonsuit, therefore,

was error.

(Argued April 11, 1872; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of defendant entered upon an order of the court at circuit, nonsuiting plaintiffs.

The action was brought to recover damages, resulting to the plaintiffs from a collision on the Hudson river.

On the 9th day of October, 1867, the plaintiffs' barge “L. P. Gardner," was being towed by the steam-tug "New York," on the Hudson river, from the city of Albany to the city of New York. The tow consisted of four tiers of canal boats, and about 100 feet in the rear of such canal boats were the plaintiffs' barge, and another barge along side of it, called the "J. L. Rathbone."

The Rathbone was loaded with lumber, which extended some twelve or fifteen feet above her deck. And on the top of that lumber, at the west side, near the Gardner, was placed a lantern which displayed what is known as a "white light." The Gardner had a similar light placed on it. The steam-tug had two head lights, and two stern lights and a red light carried amidships.

The collision occurred at about eleven o'clock at night, in the westerly channel of the Hudson, in the vicinity of the Schenectady and Athens railroad dock. Being flood tide, with a brisk breeze blowing from the south-east, this tow was moving at the rate of only one mile by the land an hour.

At the place of collision the channel was a quarter of a mile wide, and vessels could have passed the tow on either side. The defendants' schooner "Jonathan Cone" was sailing north at the rate of seven or eight miles an hour; she passed the steam-tug twenty rods to the west of her, she then changed her course and approached very nearly to the canal boats, and when within 150 feet of the plaintiffs' barge she

Statement of case.

suddenly shifted her sails and turned sharp to the east and attempted to pass to the easterly side in front of the barges. Observing this movement, the pilot of the steam-tug stopped to let the hawser slack, but instead of continuing east the "Cone "as suddenly attempted to regain the westerly passage, and in doing so she struck the "Gardner" violently in front, causing the injury complained of. Upon this evidence the court nonsuited the plaintiff.

R. A. Parmenter for the appellants. Defendants were guilty of negligence, none of the lights on the steamer or barges indicating a vessel at anchor. (13 U. S. Stat. at Large, 59, art. 7.) Whether the omission of the steam-tug to carry the lights prescribed by the act of congress constituted contributory negligence, was a question of fact for the jury. (Shear. & Red. on Neg., 32; Haley v. Earle, 30 N. Y., 208; Thomas v. Kenyon, 1 Daly, 132.) Plaintiff's negligence in not having the regulation lights was not a direct contributing cause of the collision, which in law would excuse the negligent act of the schooner. (Kernhacher v. Cleveland and C. R. R. Co., 3 Ohio St. R., 172; Trow v. Vermont Cent. R. R. Co., 24 Verm., 494; Davis v. Mann, 10 Mees. & W., 546; 18 N. Y., 258; Shear. & Red., 37; Button v. H. R. R. R. Co., 18 N. Y., 256; Savage v. Corn Ex. Ins. Co., 36 id., 658, 659; Austin v. N. J. Steamboat Co., 43 id., 82.) This action as brought is maintainable, even conceding the injury to have resulted from the concurrent negligence of the defendants' schooner and the steamboat having the tow in charge. (Chapman v. New Haven R. R. Co., 19 N. Y., 341; Colegrove v. Harlem and New Haven R. R. Co., 6 Duer, 382; same case affirmed in 20 N. Y. R., 492; Brown v. N. Y. Cent. R. R. Co., 32 id., 597.)

N. C. Moak for the respondents. A party suing for negligence must be entirely free from any degree of negligence contributing to the injury. (Rathbone v. Payne, 19 Wend., 399; Wilds v. H. R. R. R. Co., 29 N. Y., 315; Haning v.

Statement of case.

N. Y. and Erie Railway, 13 Barb., 9; Munger v. Tonawanda R. R. Co., 4 N. Y., 349.) The provisions of the act of congress must be fully complied with. (13 Stat. at Large, 58; 2 Brightly's Dig., 1st ed., 312; 2d ed., 427; 14 Stat. at Large, 227, 228.) The statutes applied to the steamer "New York" and the plaintiff's barge. (Parsons' Adm., 561; The Propeller Commerce, 1 Black., 574, 579, 580; The Santa Claus, 1 Blatchf., 370, per NELSON, J., collision on the Hudson river; Parker v. Steamboat, 2 American Law Times, 13, 14, BLATCHFORD, J., January, 1869, where the injured vessel was a canal boat in tow of the steamer Brooklyn for New York; The Daniel Ball, 10 Wall., 557; United States v. The Bright Star, 7 Int. Rev. Record, 179; 1 Woodworth's C. C. R., 266; Fitch v. Livingston, 4 Sandf., 509; Crawford v. Collins, 45 Barb., 269; 30 How., 398; Decker v. Jaques, 1 E. D. Smith, 80; Hecker v. New York, etc., 24 Barb., 221; Malyne's Lex. Merc.; Ex Parte Ferguson, L. R., 62 B., 281, 290, 292; Am. Encyc., art. "Ship;" Benedict's Adm., § 218; Sears v. Steamer Scotia, 2 Am. L. T. [U. S. C. R.], 68; The Bay State, 3 Blatchf., 49, 50, NELSON, J.; The Clement, 2 Curtis, 268, CURTIS, J.; The Santa Claus, 1 Blatchf., 370, NELSON, J.) If a vessel disregard the provisions of a statute, the burden is on her to show, in case of a collision, that the accident was not owing to such neglect, and would have equally happened if she had performed her duty. (1 Sprague, 40, SPRAGUE, J.; Warring v. Clarke, 5 How. U. S., 465; Barque Delaware v. Steamer Osprey, 2 Wall., Jr., C. C., 268, 275; The Steamer Adriadne, 2 Benedict, 472, BLATCHFORD, J.; The Esk, 2 Law Rep. Admiralty and Ecclesiastical, 350, Sir R. PHILLMORE; Sears v. Steamer Scotia, 2 Am. Law Times [U. S. Courts Rep.], 60-71, BLATCHFORD, J.; The Bay State, 3 Blatchf., 48; Taylor v. Harwood, Taney's C. C. R., 437, 444, 445.) Plaintiffs misled defendants by carrying a wrong light and cannot recover. (The Esk, Law Rep., 2 Adm. and Eccl. R., 352, 353; The Santa Claus, 1 Blatchf., 371; Sears v. Steamer Scotia, 2 Am. L. T. [U. S. C. R]., 70, 71; 7 Blatch., 326, 328; Brown v. N. Y. C. R. R., 31 Barb.,

Opinion of the Court, per CHURCH, Ch. J.

388; affirmed 32 N. Y., 597.) Plaintiffs were guilty of negligence in not having proper look-outs and men in charge of the wheels of the barges. (The Steamboat St. John, 2 Benedict, 192.) Defendants were not guilty of negligence. (The Esk, Law Rep., 2 Adm. and Eccl. R., 353; The Santa Claus, 1 Blatchf., 371; The Ariadne, 7 id., 211; The Fenham L. R., 3 Priv. Council Cas., 212; The Steamboat Austin, 3 Ben., 11.) It was not proper to show that the rules of navigation prescribed by statute were not observed in particular waters. (The Clement, 2 Curtis, 364, 369, 370, CURTIS, J.; The Rebecca, Blatch. & Howl., 347, BETTS, J.; Steamboat New York v. Rea, 18 How., 223.) It was the duty of the court to nonsuit the plaintiffs if a verdict would have been set aside as against evidence. (Loomis v. Meeker, 25 N. Y., 361; Wilds v. H. R. R. R., 24 id., 430; Steeves v. Oswego R. R., 18. id., 425.)

CHURCH, Ch. J. The light on the plaintiffs' barge was not in accordance with the navigation acts of congress, but was a light indicating that the barge was at anchor; and if those in charge of the defendants' schooner were deceived by this light, and supposed that the two barges were at anchor, the plaintiffs ought not to recover in this action; because, in that event, they would not be free from contributory negligence, which prevents a recovery in such an action. The want of proper lights on the plaintiffs' vessel is not a defence, if those in charge of the defendants' vessel knew the true state of the facts, and could, with reasonable care, have avoided the injury. (Hoffman v. Union Ferry Company, not yet reported.) In other words, the negligence of the plaintiffs must contribute to the injury. It is not enough that the plaintiffs have been negligent and an injury has occurred; but the plaintiffs' neglect must be the proximate cause to some extent, at least, of the injury. (43 N. Y., 82.)

I agree with the counsel for the respondents that, in a case like this, the presumption of contributory negligence would arise in the absence of proof of facts to repel it. The precise