Albany County NyArchives Court.....McLean, Alexander Vs. Schuyler Steam Tow-Boat Line 1889
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Source: Reports Of Cases - N Y
Written: 1889

ALEXANDER McLEAN, Administrator, etc., of JOHN FAHERTY, Deceased, Respondent, v. 
THE SCHUYLER STEAM TOW-BOAT LINE, Appellant.

A party attempting to relieve himself from an injury, occasioned by the 
negligence of another person, is bound to use ordinary care, not to 
unnecessarily injure the latter's property.

On the night of the 8th of June, 1886, a schooner, which was owned by Faherty, 
the plaintiff's intestate, was floating down the Hudson river on an ebb-tide 
laden with a cargo of brick. The defendant's steamboat, the Connecticut, was at 
the same time towing a fleet of sixty canal-boats down the river, the steamboat 
being 500 feet in advance of the fleet, which was connected with it by four 
hawsers; two steam tugs of the defendant accompanied the steamboat.

In consequence of the negligence of the owner of the schooner, who was also its 
captain, the schooner was caught and thrown upon one of the hawsers joining the 
fleet to the steamboat, and was carried in this position along with the tow for 
about two miles. The captain of the steamboat then sent one of his tugs with 
orders to get the schooner off the hawsers as soon as possible, and in doing 
this the rudder and also some of the planks were torn off of the schooner, which 
soon thereafter sank.

Upon an appeal from a judgment in favor of the plaintiff's intestate, entered 
upon the report of a referee in an action brought by the plaintiff's intestate 
to recover damages alleged to have been occasioned by the defendant's negligence:

Held, that as the negligence of the plaintiff's intestate caused the schooner to 
be thrown upon the defendant's hawsers, the duty of extraordinary diligence in 
getting off the hawsers was imposed upon him.

That it was the defendant's duty to use only ordinary care not to do unnecessary 
injury to the schooner in getting her off the hawser.

The referee found that the captain of the steamboat, after being told that the 
hawser was between the stern-post and rudder, proceeded to pull her off.

Held, that as it was obvious that without removing the hawser from that  
position the stern-post must be torn off and the schooner otherwise injured, 
that the captain did not use ordinary care to avoid doing unnecessary injury to 
the schooner.

Appeal from a judgment, entered in favor of the plaintiff, upon the report of a 
referee, in the office of the clerk of Albany county, on July 28, 1888.

Faherty owned and was captain of a schooner on the Hudson river. On the night of 
the 8th of June, 1886, when there was no wind, she was floating down the river 
on an ebb tide laden with a cargo of brick. She had the usual red and green 
lights upon her port and starboard sides. These were not visible from her rear. 
She was about 150 feet from the west shore. The moon was about two hours and 
three-quarters high, and the schooner was in the shadow of the hills on the west 
bank of the river.

The defendant's steamboat, the "Connecticut," was, at the same time, towing a 
fleet of sixty canal boats down the river. The steamboat was 500 feet in advance 
of the fleet and four hawsers connected the steamboat and fleet. Two steam tugs 
of defendant accompanied the steamboat. Faherty saw the steamboat when she was 
two miles away. It was his duty then to show a lighted torch upon the point or 
quarter of his schooner towards which the steamboat was approaching. (U. S. R. 
S., § 4234.) This he did not do. The result was the shooner was not seen from 
the Connecticut until she came abreast of the schooner. The river makes a sharp 
turn at West Point, and it was obvious that the schooner would be caught in the 
loop to be formed by the steamboat and fleet in rounding the turn. The schooner 
was so caught and was thrown upon one of the hawsers joining the fleet to the 
steamboat.

The referee finds that the schooner became thus entangled in consequence of the 
negligence of her owner and master, the plaintiff's intestate. While in this 
position she was carried along with the tow for about two miles. The captain of 
the steamboat then sent one of his tugs with orders to get the schooner off the 
hawser as soon as possible. In doing this the rudder of the schooner was torn 
off, also some of her planks, and she soon sank.

Worthington Frothingham, for the appellant.

E. Countryman, for the respondent. 

Landon, J.:

The plaintiff's negligence caused his schooner to be thrown upon the defendant's 
hawser, with which defendant, by means of the steamboat Connecticut, was towing 
a fleet of canal boats down the river. The schooner was between the canal boats 
and the defendant's steamboat. It was plaintiff's duty to be extraordinarily 
diligent in getting off the hawser. It was defendant's duty to use ordinary care 
to do no unnecessary injury to the schooner in assisting in getting her off the 
hawser. (Mark v. Hudson River Bridge Co., 103 N. Y., 28.)

Upon the facts found by the referee, the defendant did not use ordinary care to 
avoid doing unnecessary injury to the schooner, but proceeded to pull her off 
after being told that the hawser was between the stern-post and the rudder, and 
when it was obvious that without removing the hawser from that position the 
stern-post would be torn off and the schooner otherwise injured. The finding of 
the referee is within the evidence, and we see no reason to dissent from it. The 
negligence of the plaintiff by which his schooner fell into this place of 
danger, and became a nuisance to the defendant, was not the proximate cause of 
the injury to the schooner. That was caused by the defendant's reckless 
disregard of the consequences of proceeding to pull the schooner off the hawser 
without taking the precautions known to be necessary in order to avoid doing her 
unnecessary injury. True, the referee finds that the schooner's condition 
was "desperate" when lying on the hawser between the fleet of canal boats and 
the steamboat propelling them. But that desperate condition consisted in the 
plaintiff's inability to extricate his schooner without the proper precaution 
and assistance on the part of the men in charge of the steamboat. The proper 
things to do were suggested by the plaintiff; they would involve a small delay 
on the part of the defendant; this delay was refused and the defendant pulled 
off the schooner in reckless disregard of the consequences reasonably to be 
apprehended, and which, with ordinary care, might have been avoided.

The objection to the question put by the defendant to the captain of the 
steamboat, whether, in his opinion, anything could have been done by him or his 
steamboat better than was done, was properly sustained. The negligence charged 
against the defendant consisted of the simple act of pulling the schooner off 
the hawser under such conditions as must tear the rudder from the schooner. No 
expert knowledge was needed to understand so simple a situation and its 
consequences, and the substitution of an opinion for the facts would manifestly 
be improper.

The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred. 

Judgment affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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