Rumsey, J.:
The plaintiff was injured by the falling upon him of a heavy tank which was being unloaded from a lighter upon a dock at Newark, N. J. The defendants were the owners of the lighter. They had undertaken, upon a contract, the terms of which will be examined later, either to charter the lighter to one Schaenawelf to transport certain goods from New York to Newark for him, or to carry the goods for him upon some other contract. Among the articles to be carried was a heavy iron tank. For the purpose of unloading this tank it had been swung by ropes from the boom of the lighter, and, while it was thus swinging, the rope broke and it fell upon the pier. The story of the plaintiff was that he was in the employ of Schaenawelf as a truckman and was present upon the dock, waiting to transport the goods to their place of final destination. He says that, as he stood there upon the dock, the captain of the lighter called upon him to lend a hand to the handling of the tank, and just as he stepped forward and put his hand upon it for that purpose, the rope broke and it fell upon him and caused his injuries.
The evidence was such as to warrant the jury in finding that the plaintiff’s story of the circumstances under which he was injured was substantially the correct one, although many of the facts stated by the plaintiff were denied by the defendants’ witnesses.
The claim of the plaintiff is that the captain of the lighter was negligent, either in selecting a rope which was obviously unfit to sustain the great' weight of the tank, or in so attaching it to the tank that it was almost certain to be cut through by the weight, and that the falling of it was caused by negligence in one or the other of these respects.
The defendants, however, claim that, conceding the case to be as claimed by the plaintiff, he was a fellow-servant of the captain, and, [260]*260therefore, that the defendants were not liable for the captain’s negligence, it appearing that they did furnish rope of sufficient strength to carry the weight of the tank.
It is undisputed- that the plaintiff was in the employ of Schaenawelf, and that he had not heen hired by the defendants and had no relations with them. That being so, he was not strictly a servant of the defendants in any sense. The duty of the captain and those men who were.at work upon the lighter was to navigate it and coltrol the unloading of it. The plaintiff was there to help take charge of the goods after they had been unloaded and transport them to their final destination. The duty of the captain was confined to the lighter, and the duty of the plaintiff was confined to the transportation of the goods after they had been unloaded. They were not. hired by the same person, unless the captain was a servant of Schaenawelf, which will, be considered later, and they were not engaged in the same .employment. Therefore, the defendants were-not relieved from responsibility to the plaintiff for the negligence of the captain, because the two were co-servants. (Svenson v. Atlantic Mail S. S. Co., 57 N. Y. 108; Sandford v. Standard Oil Co., 118 id. 571; Kilroy v. D. & H. C. Co., 121 id. 22.)
The claim that the plaintiff was guilty of contributory negligence': cannot be sustained. That question was properly submitted to the-jury, and upon the facts their finding is conclusive, as there was-plenty of evidence to sustain it
The most serious question, however, arises upon the claim made-by the defendants, that they were' not responsible for the negligence of the captain, if lie was negligent, because they had chartered the-vessel to Schaenawelf and had no longer any control over it, and that he was in sole control, not only of the vessel, hut of the persons who were employed upon it at the time the accident occurred* so that those persons were his servants and not the defendants’.
The court submitted to the jury in a full and complete charge, as-. requested by the defendant, the question as to what was the contract, between Schaenawelf and the defendants for the transportation of these goods. They were instructed that “if.the jury believe that the lighter was, at the.time of the accident, hired by Schaenawelf and that he was in control of the' lighter and of the captain and men on her at that time, they must find for the defendants.” They [261]*261were further instructed that “if the jury believe that the defendants in February, 1893, leased the lighter to Schaenawelf, together with the full use of the same, and control of the captain and men, that Schaenawelf assumed control of the boat and employment of the men, and had the right to employ the boat and men as he pleased; and to give orders to the captain and men, and that this state of affairs existed at the time of the accident, .they must find for the defendant.” The court further charged upon that subject every request which was made by the defendant. The jury, nevertheless, found for the plaintiff, and, therefore, the liability of the defendants is established unless it can be said that the finding was against the weight of evidence, or that,- upon the undisputed facts, the boat had been leased to Schaenawelf so that he had absolute control of the captain and the men upon it.
The evidence as to the precise terms of the contract was given by Mr. Boyer, one of the defendants, himself. He testified, substantially, that' Schaenawelf applied to him to transport some goods from somewhere up the East river to Newark; that he was unable to obtain from Schaenawelf such information as would enable him to give the price for transportation. He then said: “I proposed to him that I would charter him a -boat by the day, furnished with two men, and he paying all the expenses for taking charge of the boat. He wanted to know what that would cost, and I told him $15 per day. He wanted to know what the towing would be, and I told him I could not tell that; to find that out for himself, or I told him what we charged and he agreed to it. * * * ' He said he agreed to it, and then he told me that he would send men to where this freight was coming from, to take charge of the lighter, and also to take charge of her when the stuff that she had on was delivered. I asked him, but he could not exactly tell me, what the class of goods were. He said they were brewers’ goods, and some heavy weights. I asked him what was the heaviest piece; he said about three tons, and I asked him to describe'it to me, and he did, and he said two vats, iron vats or tanks. My proposition, which he agreed to, was to furnish him the boat and two men at $15 per day, and he was to do his own towing. He was to do all the work necessary to carry his goods, outside of my furnishing the boat—■ charter the boat from me. There was a third man,. I understand, [262]*262aboard of the boat; I did not pay that man in any way, to my knowledge. The boat which I selected for this service was the James F. Her captain is * * * Captain Haverstock; the mate is the man alongside of him. * * ' * Those men have been in our employment for a number of years.”
Mr. Lange, the superintendent of the defendants, was present at the time of this conversation, but he gives no evidence as to the nature of the contract, except that he heard _ Mr. Boyer make the proposition to Schaenawelf to take the boat and the two men by the day, and that Schaenawelf accepted it. .
That is all the direct evidence as ' to the nature of the contract.
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Rumsey, J.:
The plaintiff was injured by the falling upon him of a heavy tank which was being unloaded from a lighter upon a dock at Newark, N. J. The defendants were the owners of the lighter. They had undertaken, upon a contract, the terms of which will be examined later, either to charter the lighter to one Schaenawelf to transport certain goods from New York to Newark for him, or to carry the goods for him upon some other contract. Among the articles to be carried was a heavy iron tank. For the purpose of unloading this tank it had been swung by ropes from the boom of the lighter, and, while it was thus swinging, the rope broke and it fell upon the pier. The story of the plaintiff was that he was in the employ of Schaenawelf as a truckman and was present upon the dock, waiting to transport the goods to their place of final destination. He says that, as he stood there upon the dock, the captain of the lighter called upon him to lend a hand to the handling of the tank, and just as he stepped forward and put his hand upon it for that purpose, the rope broke and it fell upon him and caused his injuries.
The evidence was such as to warrant the jury in finding that the plaintiff’s story of the circumstances under which he was injured was substantially the correct one, although many of the facts stated by the plaintiff were denied by the defendants’ witnesses.
The claim of the plaintiff is that the captain of the lighter was negligent, either in selecting a rope which was obviously unfit to sustain the great' weight of the tank, or in so attaching it to the tank that it was almost certain to be cut through by the weight, and that the falling of it was caused by negligence in one or the other of these respects.
The defendants, however, claim that, conceding the case to be as claimed by the plaintiff, he was a fellow-servant of the captain, and, [260]*260therefore, that the defendants were not liable for the captain’s negligence, it appearing that they did furnish rope of sufficient strength to carry the weight of the tank.
It is undisputed- that the plaintiff was in the employ of Schaenawelf, and that he had not heen hired by the defendants and had no relations with them. That being so, he was not strictly a servant of the defendants in any sense. The duty of the captain and those men who were.at work upon the lighter was to navigate it and coltrol the unloading of it. The plaintiff was there to help take charge of the goods after they had been unloaded and transport them to their final destination. The duty of the captain was confined to the lighter, and the duty of the plaintiff was confined to the transportation of the goods after they had been unloaded. They were not. hired by the same person, unless the captain was a servant of Schaenawelf, which will, be considered later, and they were not engaged in the same .employment. Therefore, the defendants were-not relieved from responsibility to the plaintiff for the negligence of the captain, because the two were co-servants. (Svenson v. Atlantic Mail S. S. Co., 57 N. Y. 108; Sandford v. Standard Oil Co., 118 id. 571; Kilroy v. D. & H. C. Co., 121 id. 22.)
The claim that the plaintiff was guilty of contributory negligence': cannot be sustained. That question was properly submitted to the-jury, and upon the facts their finding is conclusive, as there was-plenty of evidence to sustain it
The most serious question, however, arises upon the claim made-by the defendants, that they were' not responsible for the negligence of the captain, if lie was negligent, because they had chartered the-vessel to Schaenawelf and had no longer any control over it, and that he was in sole control, not only of the vessel, hut of the persons who were employed upon it at the time the accident occurred* so that those persons were his servants and not the defendants’.
The court submitted to the jury in a full and complete charge, as-. requested by the defendant, the question as to what was the contract, between Schaenawelf and the defendants for the transportation of these goods. They were instructed that “if.the jury believe that the lighter was, at the.time of the accident, hired by Schaenawelf and that he was in control of the' lighter and of the captain and men on her at that time, they must find for the defendants.” They [261]*261were further instructed that “if the jury believe that the defendants in February, 1893, leased the lighter to Schaenawelf, together with the full use of the same, and control of the captain and men, that Schaenawelf assumed control of the boat and employment of the men, and had the right to employ the boat and men as he pleased; and to give orders to the captain and men, and that this state of affairs existed at the time of the accident, .they must find for the defendant.” The court further charged upon that subject every request which was made by the defendant. The jury, nevertheless, found for the plaintiff, and, therefore, the liability of the defendants is established unless it can be said that the finding was against the weight of evidence, or that,- upon the undisputed facts, the boat had been leased to Schaenawelf so that he had absolute control of the captain and the men upon it.
The evidence as to the precise terms of the contract was given by Mr. Boyer, one of the defendants, himself. He testified, substantially, that' Schaenawelf applied to him to transport some goods from somewhere up the East river to Newark; that he was unable to obtain from Schaenawelf such information as would enable him to give the price for transportation. He then said: “I proposed to him that I would charter him a -boat by the day, furnished with two men, and he paying all the expenses for taking charge of the boat. He wanted to know what that would cost, and I told him $15 per day. He wanted to know what the towing would be, and I told him I could not tell that; to find that out for himself, or I told him what we charged and he agreed to it. * * * ' He said he agreed to it, and then he told me that he would send men to where this freight was coming from, to take charge of the lighter, and also to take charge of her when the stuff that she had on was delivered. I asked him, but he could not exactly tell me, what the class of goods were. He said they were brewers’ goods, and some heavy weights. I asked him what was the heaviest piece; he said about three tons, and I asked him to describe'it to me, and he did, and he said two vats, iron vats or tanks. My proposition, which he agreed to, was to furnish him the boat and two men at $15 per day, and he was to do his own towing. He was to do all the work necessary to carry his goods, outside of my furnishing the boat—■ charter the boat from me. There was a third man,. I understand, [262]*262aboard of the boat; I did not pay that man in any way, to my knowledge. The boat which I selected for this service was the James F. Her captain is * * * Captain Haverstock; the mate is the man alongside of him. * * ' * Those men have been in our employment for a number of years.”
Mr. Lange, the superintendent of the defendants, was present at the time of this conversation, but he gives no evidence as to the nature of the contract, except that he heard _ Mr. Boyer make the proposition to Schaenawelf to take the boat and the two men by the day, and that Schaenawelf accepted it. .
That is all the direct evidence as ' to the nature of the contract. It appears, however, that the boat was let to Schaenawelf to carry these particular goods from somewhere on the East river to Newark, and for no other purpose.
There was produced by the plaintiff the bill which had been rendered by the defendants to Schaenawelf for the use of the boat,-but that bill is of no importance that we can discover in the case. It does not aid in any way to explain the precise contract which was made between the parties.
In the first place, in regard to this contract, it may be said that the sole evidence from which the jury could have found precisely what it was, was that given by Boyer himself, who was one of the defendants. The defendants being the owners of the boat, their authority and liability as owners would be presumed to continue until they had ¡Droved the existence of some contract which relieved them from that liability. (Hagar v. Clark, 78 N. Y. 45.) The burden, therefore, was upon them to show that they had made with Schaenawelf such a contract as made the captain of the boat substantially his servant, and imposed - upon him the liability for -the negligence of the captain and relieved them from it. As the evidence of that contract was given entirely by the defendant, who was ah interested party, the weight to be given to that evidence was, within well-settled rules, a question for the jury, and it would have been error for the court to refuse to submit it to them. As to the terms of the contract, the defendant’s testimony is not aided by that of Lange, because the testimony of Lange is consistent with a continued liability of the owner for the conduct of the men on. board the boat. For this reason, without going further, we might [263]*263conclude that the case was properly submitted to the jury upon this-point.
But, waiving that, it still was a question for the jury, even though Boyer had been a disinterested witness. The question to be decided was, as stated by the court to the jury, whether the defendants had divested themselves of the control of the boat and the men so that. Schaenawelf had the right to employ the boat and men as he pleased, and to give orders to the captain and the men, and the defendants, had no further control over them, The rule laid down by the court, was the correct rule of law. The liability of the owner of a ship-for the negligence of those employed .upon it ceases, not necessarily where there is a charter of a vessel, but only where there has beeix such a demise of the vessel as to take from the owner all possession,, authority and control. He must so transfer the possession and control of the vessel as to surrender it all to the charterer, and to leave, himself no right to interfere, before he is relieved from liability. (Hagar v. Clark, 78 N. Y. 45; Scarff v. Metcalf, 107 id. 211.) Even giving to the testimony of Boyer the broadest interpretation, claimed for it by the defendants, it was still a question of fact' whether he had actually surrendered all control over the boat, and. the men on board of it, to Schaenawelf. That question was to be-decided, not only by the terms of the contract, which were somewhat ambiguous upon that pqint, but by the subsequent conduct of the-parties while the contract was in process of execution. The evidence upon that point shows that the Boyers did exercise some control overtire captain while he was carrying these goods. The charter, if it may be called one, was not unlimited. It was to carry special goods, from one particular place to another, and it appears that while the, captain was engaged in that duty, Boyer and his superintendent sought him out, gave instructions to him, gave him directions what, to do and how to deal with Schaenawelf, and exércised the right to-control his movements so far as to direct what he should do at certain times and under certain circumstances. Considering that evidence with the evidence of Boyer as to the contract, the jury were, at liberty to find that the Boyers had not divested themselves of all. control over the captain and the boat, but still exercised some supervision over it, and that being so, the jury might have found that the-captain was still their servant, and that they were responsible for his [264]*264negligence. The finding upon that subject, therefore, was warranted by the evidence, and it was not error for the court to refuse to instruct the jury, as a matter of law, that there was no liability on the part of the defendants.
We have examined the different exceptions taken by the defendants to the refusal to charge the 9th, 11th, 12th, 13th and 19th requests, and we find no error in them.
Upofi the whole case we are of opinion that it was properly submitted to the jury, and that tile judgment should be affirmed.
Van Brunt, P. J., Barrett .and O’Brien, JJ., concurred; Ingraham, J., -dissented.