Barnes v. Cole

21 Wend. 188

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Bbonson, J.

Was McSwain properly excluded as a witness ? He was at the helm at the time the accident happened; but the captain of the steamboat was at his side, acting as pilot. So far as appears, the steersman did nothing more than discharge his duty in obedience to the orders of his superior. If there was negligence any where, there was no evidence to show that he in particular was chargeable with it. Indeed upon the evidence, he must be taken to have acted in obedience to the orders of the master. Under such circumstances, it would be the master, and not the steersman, who would be liable to the defendants, who were the owners, in case of a recovery against them, and clearly the steersman could not be answerable to the captain for obeying his commands. It seems impossible then to maintain that the witness was interested. The case falls within the principle decided in Noble & Palmer v. Paddock, 19 Wendell, 456. That was an action against the captain, who was in the immediate command of his boat at the time of the accident, and in the absence of any proof to charge the injury upon the steersman, he was held to be a competent witness for the defendant. The cases were there reviewed by the Chief Justice, and 1 need not, therefore, refer to them. The witness was improperly rejected.

The verdict was also, I think, plainly against the weight of evidence. I do not see how the plaintiff could escape the charge of having to some extent contributed to bring the misfortune upon himself, by leaving his boat in an improper situation.

New trial granted.