By the Court.- Woodruff, J.
This is an action brought by the owner of a steamboat against the owners of a sailing vessel, for injuries sustained by a collision between the two vessels on the Hudson River, in the night season, while the steamboat was ascending, and the schooner, with the wind fair, was descending the river.
[468]*468The action was tried before the justice, without a jury, and no ruling upon any specific question of law appears by the return, nor is there any special finding of facts upon which we can see that the justice erred in the rules of law which he applied to his finding upon the evidence.
Nor did the counsel for the parties differ on the argument respecting the rules of law by which the navigation of steamboats and sailing vessels are to be governed, i It was not denied, by the counsel for the respondents, (owners of the steamboat,) that the sailing vessel had a right to keep her course, and that it was the duty of the steamboat (having seen the schooner at the distance of over a mile) to avoid her if she did so.
Nor did the counsel deny that if the owners of the steamboat were in fault, they could not recover..
The unexplained finding of the justice comes to us in a form so general, that we must say that the justice has found that the injury complained of was caused by the negligence or want of skill of the persons engaged in the navigation of the schooner, and that no negligence or want of skill on the part of those who navigated the steamboat contributed thereto.
It is undoubtedly true, as in substance insisted by the appellant’s counsel, that the plaintiff was bound to show, by a preponderance of evidence, that the accident was occasioned by the fault of the defendant, and it must not appear that any fault of the plaintiff conduced thereto. And assuming this to be the true rule, the justice must have found upon the evidence that the injury was so occasioned.
Did the evidence warrant such a finding ? or rather, was such a finding so clearly against the weight of the evidence that the judgment should be reversed upon that ground ?
If the appellant is right in the proposition, that the steamboat was bound, at all events, to have kept a competent person stationed on her bows as a look-out, and that not having proved that she did so, she is to be deemed in fault, as matter of law, and therefore not entitled to recover, [469]*469then the judgment must be reversed without further inquiry.
But upon examination of the evidence, three things are observable, bearing upon this question:
First. No proof was given by either party to the precise point. Whether the steamboat had a look-out exactly upon the bows or not, does not appear. But Davis, one of the plaintiffs’ witnesses, does testify that he was a deck hand, and was on the forward deck at the time, and did see the schooner.
Second. It does appear that the persons navigating the steamboat did, in fact, see the schooner as soon as, from the course of the river, she was visible, and if so, the presence of a look-out on the bows would not have aided her in avoiding the schooner, nor would the absence of such look-out have rendered a collision more probable. It was a clear night, and the men on each vessel distinctly saw the other.
Thus, Hulse, mate of the schooner, first saw the steamboat as she was coming around Crum Elbow. And Storms, the pilot of the steamboat, says, that when he first saw the sailing vessels, (the schooner in question being the furthest off of five sailing in the neighborhood of each other,) “ they were more than a mile off.” And Davis swears that the schooner in question was about a quarter of a mile behind the schooner which was immediately ahead of her.
So that, according to the evidence of both parties, each saw the other as the steamboat came around Crum Elbow, when the schooner in question was from a mile and a quarter to a mile and a half distant.
It was a bright moonlight night; and under such circumstances I cannot perceive that the question, whether there was or was not a man on the bows of the steamboat, was material. If he was there, he could only see and communicate to the pilot what the pilot himself in fact saw. And if he was not there, the pilot lacked no knowledge of the proximity of the schooner.
Without at all questioning the cases cited by the appel[470]*470lant’s counsel to show the necessity of a look-out, I do not understand those cases to go the length of saying, that under all circumstances the absence of such a look-out shall be deemed faulty negligence, so as to subject the steamboat to blame, whether the absence of the look-out did or did not contribute to the injury.
The necessity of such a look-out must depend upon the time, the state of -the weather, the nature of the danger to be guarded against; and if the court below find that the absence of such look-out did not contribute to the injury in the particular case before them, then it will not prevent the recovery by the plaintiffs.
But, Third. The plaintiffs were not bound to prove affirmatively any thing more than they had alleged in their complaint, i. <?., that the steamboat was injured by or through the carelessness and negligence of the defendant or his agents. Having established this b y primafacie proof, without showing want of care or skill on his own part, it was for the defendant to show, by way of defence, that negligence on the plaintiffs’ part concurred in producing the result. If under the pleadings in this case, in which the answer was a mere denial of the plaintiffs’ allegations, the defendant was at liberty to do this, the burden was cast upon him.
The case, therefore, to my mind, presents only the general inquiry above stated—Is the finding of the court below upon the whole case, that the plaintiffs’ boat was injured by the negligence of tire defendant, without fault on the part of the plaintiffs, so far against the weight of the evidence that the judgment should be reversed upon this ground?
All the points of the appellant, except the one above noticed, are addressed to this; and in considering it, it is not necessary to question either of the legal propositions contained in the points, nor were they controverted by the respondent’s counsel on the argument. ,
The sailing vessel had a right to keep her course. The plaintiffs had a right to assume that she would do so, and were bound to govern themselves by that assumption, unless [471]*471and until they saw her in fact change. And under that assumption the plaintiffs were bound to be active and vigilant in their endeavors to avoid her.
I am free to say, that upon a very careful examination of the evidence contained in the justice’s return, without any aid from personal observation of the witnesses, and their manner of testifying, my mind is led to a conclusion of fact the reverse of the justice’s finding. The plaintiffs’ theory appears to be that the officers of the steamboat were active and vigilant in their endeavors to avoid the vessel, but were actually run into by the latter, by reason of her making an unexpected change to the westward shortly before they came abreast of each other.
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By the Court.- Woodruff, J.
This is an action brought by the owner of a steamboat against the owners of a sailing vessel, for injuries sustained by a collision between the two vessels on the Hudson River, in the night season, while the steamboat was ascending, and the schooner, with the wind fair, was descending the river.
[468]*468The action was tried before the justice, without a jury, and no ruling upon any specific question of law appears by the return, nor is there any special finding of facts upon which we can see that the justice erred in the rules of law which he applied to his finding upon the evidence.
Nor did the counsel for the parties differ on the argument respecting the rules of law by which the navigation of steamboats and sailing vessels are to be governed, i It was not denied, by the counsel for the respondents, (owners of the steamboat,) that the sailing vessel had a right to keep her course, and that it was the duty of the steamboat (having seen the schooner at the distance of over a mile) to avoid her if she did so.
Nor did the counsel deny that if the owners of the steamboat were in fault, they could not recover..
The unexplained finding of the justice comes to us in a form so general, that we must say that the justice has found that the injury complained of was caused by the negligence or want of skill of the persons engaged in the navigation of the schooner, and that no negligence or want of skill on the part of those who navigated the steamboat contributed thereto.
It is undoubtedly true, as in substance insisted by the appellant’s counsel, that the plaintiff was bound to show, by a preponderance of evidence, that the accident was occasioned by the fault of the defendant, and it must not appear that any fault of the plaintiff conduced thereto. And assuming this to be the true rule, the justice must have found upon the evidence that the injury was so occasioned.
Did the evidence warrant such a finding ? or rather, was such a finding so clearly against the weight of the evidence that the judgment should be reversed upon that ground ?
If the appellant is right in the proposition, that the steamboat was bound, at all events, to have kept a competent person stationed on her bows as a look-out, and that not having proved that she did so, she is to be deemed in fault, as matter of law, and therefore not entitled to recover, [469]*469then the judgment must be reversed without further inquiry.
But upon examination of the evidence, three things are observable, bearing upon this question:
First. No proof was given by either party to the precise point. Whether the steamboat had a look-out exactly upon the bows or not, does not appear. But Davis, one of the plaintiffs’ witnesses, does testify that he was a deck hand, and was on the forward deck at the time, and did see the schooner.
Second. It does appear that the persons navigating the steamboat did, in fact, see the schooner as soon as, from the course of the river, she was visible, and if so, the presence of a look-out on the bows would not have aided her in avoiding the schooner, nor would the absence of such look-out have rendered a collision more probable. It was a clear night, and the men on each vessel distinctly saw the other.
Thus, Hulse, mate of the schooner, first saw the steamboat as she was coming around Crum Elbow. And Storms, the pilot of the steamboat, says, that when he first saw the sailing vessels, (the schooner in question being the furthest off of five sailing in the neighborhood of each other,) “ they were more than a mile off.” And Davis swears that the schooner in question was about a quarter of a mile behind the schooner which was immediately ahead of her.
So that, according to the evidence of both parties, each saw the other as the steamboat came around Crum Elbow, when the schooner in question was from a mile and a quarter to a mile and a half distant.
It was a bright moonlight night; and under such circumstances I cannot perceive that the question, whether there was or was not a man on the bows of the steamboat, was material. If he was there, he could only see and communicate to the pilot what the pilot himself in fact saw. And if he was not there, the pilot lacked no knowledge of the proximity of the schooner.
Without at all questioning the cases cited by the appel[470]*470lant’s counsel to show the necessity of a look-out, I do not understand those cases to go the length of saying, that under all circumstances the absence of such a look-out shall be deemed faulty negligence, so as to subject the steamboat to blame, whether the absence of the look-out did or did not contribute to the injury.
The necessity of such a look-out must depend upon the time, the state of -the weather, the nature of the danger to be guarded against; and if the court below find that the absence of such look-out did not contribute to the injury in the particular case before them, then it will not prevent the recovery by the plaintiffs.
But, Third. The plaintiffs were not bound to prove affirmatively any thing more than they had alleged in their complaint, i. <?., that the steamboat was injured by or through the carelessness and negligence of the defendant or his agents. Having established this b y primafacie proof, without showing want of care or skill on his own part, it was for the defendant to show, by way of defence, that negligence on the plaintiffs’ part concurred in producing the result. If under the pleadings in this case, in which the answer was a mere denial of the plaintiffs’ allegations, the defendant was at liberty to do this, the burden was cast upon him.
The case, therefore, to my mind, presents only the general inquiry above stated—Is the finding of the court below upon the whole case, that the plaintiffs’ boat was injured by the negligence of tire defendant, without fault on the part of the plaintiffs, so far against the weight of the evidence that the judgment should be reversed upon this ground?
All the points of the appellant, except the one above noticed, are addressed to this; and in considering it, it is not necessary to question either of the legal propositions contained in the points, nor were they controverted by the respondent’s counsel on the argument. ,
The sailing vessel had a right to keep her course. The plaintiffs had a right to assume that she would do so, and were bound to govern themselves by that assumption, unless [471]*471and until they saw her in fact change. And under that assumption the plaintiffs were bound to be active and vigilant in their endeavors to avoid her.
I am free to say, that upon a very careful examination of the evidence contained in the justice’s return, without any aid from personal observation of the witnesses, and their manner of testifying, my mind is led to a conclusion of fact the reverse of the justice’s finding. The plaintiffs’ theory appears to be that the officers of the steamboat were active and vigilant in their endeavors to avoid the vessel, but were actually run into by the latter, by reason of her making an unexpected change to the westward shortly before they came abreast of each other. That a steamboat, under full command, with steam fully adequate to her control, with power to go backward or forward, to the right or to the left, at the pleasure of the pilot, should be unable, by the use of activity and vigilance, to avoid a heavily laden schooner in an open sea, and in full view for over a mile, seems, to my mind, not a little extraordinary.
Again, one of plaintiff s’ witnesses says, that the steamboat stopped before the collision, and if she had not stopped there would have been no accident. And I think the speed of the vessels and their relative positions show that he is probably correct in this.
It is true that the pilot of the steamboat says, “ If I had not stopped, we would have run right over the Celeste,” the schooner.
It seems to me that the undisputed fact that the larboard bow of the schooner struck the starboard side of the steamboat thirty feet back of the stem, shows, béyond possibility of dispute, that in this he is mistaken; for although the steamboat stopped, her stem passed beyond the schooner before she struck. How, then, if the steamboat had not abated her speed, would she have run “ right over” the schooner ? Again, the steamboat could go backward. If, then, by backing thirty feet, she would have cleared the schooner entirely, it seems not a little surprising that she not only did [472]*472not go backward, but that the pilot made no effort to do so. He did not even reverse the engine. It seems to me very difficult to say that the steamboat was without blame if she advanced among a fleet of six or seven vessels, all in full view, at such a speed that she could not or would not, either by stopping or going backward, turning one way or the other, avoid them. Besides, upon the main question, i. e., whether the schooner kept her course, it seems to me that the balance of the evidence is in favor of the defendant. The mate of the schooner testifies that he gave express directions to the helmsman, when he saw the steamboat, to keep her course, i. e., to keep her steady; and that he did so. The helmsman swears positively that he did so. Another witness, a ship captain, then on board the schooner, who saw the whole, says, the- schooner kept her course.
Two witnesses for the plaintiffs contradict this, and the evidence of two others corroborates them to some extent. But when it is considered that the steamboat turned to the west before the collision, it is easy to see that much if not all of the plaintiffs’ evidence on that head may be explained by the fact, that the motion of the steamboat westward presented the schooner, to the eyes of those witnesses, in the same relative position as if the schooner herself had changed her course to the eastward.
The most probable explanation of the disaster appears to me to be, that the steamboat turned to the westward in an endeavor to pass across the track of the schooner, i. e., to pass between the two schooners; which is the precise ex- ■ planation suggested at the moment of the occurrence, and not then denied by the pilot of the boat.
These suggestions serve as reasons why, upon the written evidence, I think I should have come to a conclusion different from the finding of the court below. But it does not follow that we should reverse the judgment.
There is a great conflict in the testimony. The court below had the witnesses before them, and an opportunity to observe their appearance and manner of testifying, and su[473]*473perior means of judging of their credibility, and the degree of weight to be given to their testimony. The very discussion in which I have indulged shows that the case was not free from doubt. The plaintiffs’ witnesses say that the schooner changed her course to the east before the collision, and had actually passed to the eastward of the steamboat’s course, so that the pilot had a right to assume, and did assume, that she would continue on that course, and pass the steamboat; and the pilot having turned to the westward, to give her room, was suddenly surprised by the schooner luffing and coming down upon the boat.
Under such circumstances, I think, we cannot set aside the finding of the court below. We treat the finding of the justice as we would the verdict of a jury. And where the evidence is conflicting, we do not set it aside merely because the evidence seems to us to preponderate against the finding. To warrant this, the case should be so clear (as we have heretofore often held) that we deem it to show bias, partiality, undue influence, or plain mistake or misapprehension. The principles of Douglass v. Tousey, 2 Wend. 356; Keeler v. The Firemen's Insurance Company, 3 Hill, 256; Rathbone v. Stanton, 6 Barb. Sup. Ct. Rep. 143, are in accordance with these views; and if we were to adopt the rule laid down in McDonald v. Edgerton, 5 Barb. Sup. Ct. Rep. 562, as governing appeals under the Code, there would be no room for the discussion.
Upon the whole, I feel constrained to say, that the judgment must be affirmed.
Daly, J., concurred.
The First Jttogde not having been present at the argument, took no part in the decision of the case.
Judgment affirmed.