TOWNSEND, Circuit Judge.
The single assignment of error challenges the action of the trial judge in refusing to direct a verdict for the. defendant on the ground either that the defendant was not in fault, or, even if in fault, that plaintiff’s fault contributed to cause the injury.
The contention of contributory negligence need not be discussed. The plaintiff, it is true, when he saw the approaching boat 100 feet away, was in a place of safety, and he put himself in a perilous position where apparently he would be likely to be injured by a very slight jar or disturbance of the water. But this question was one peculiarly for the jury, the burden of proof was upon the defendant, the facts were fairly submitted to them in a charge to which no exception was taken, and their verdict is conclusive upon this point.
A more serious question is presented upon the contention that no negligence has been shown on the part of the defendant. The maneuver executed by the master of Transfer No. 4 appears to have been a usual one in such conditions when it is necessary, and, barring the question of the violence of the jar in contacting with the float, seems to have been properly performed. There is considerable, testimony to the effect that that was the only practicable way in which to reach the coal dock with this boat in a flood tide and with the accumulation of boats at this point.
Furthermore, we find no negligence in the fact that the master of the transfer did not see the plaintiff at the time of the collision. The evidence shows that he was in a position where he could not be seen from the transfer. The plaintiff himself testifies as follows:
“I could not look over tbe cars. Sbe went past tbe cars. I could not see it, as tbe cars were between me and tbe transfer, until after sbe ys-ent by them. [545]*545From the place where I stood, I could not see the boat. The Transfer I saw coming up the riyer, after she passed the line of freight cars on that float.Then I could see her after -that. I could not see it when it was behind that line of cars; but after she passed I could.”
And it appears further from his testimony that at the time of the accident he was stooping over so far, in order to get at the line, that probably his body was out of sight.
Nor do we find any negligence on the part of the master of the Transfer by reason of the claim that he could have seen plaintiff when the Transfer was coming up the river, for the plaintiff at that time was in a place of safety. As he says:
“I was standing on the string piece. I hadn’t stepped down between the boat I was standing on the string piece when I got hit. When I looked down the river and saw the Transfer, I was on the bow of my boat; on the deck. We were just starting to get the rope up with the pike,pole. We had tried it with a pike pole, and were just going to try the other way. At that time the Transfer was headed right up the river, and was, I should judge, about the length of 100 feet from me. * * * She was, I should judge, about 100 feet — not from me, but from the railroad float. She was further out in the river towards the railroad float. She was not opposite the railroad float. The tug was below the railroad float. She was coming up towards the railroad float, outside. She was about 100 feet below the railroad float.”
Nor do we find any negligence in the failure of the master of the transfer to give any signal by means of whistles or bells. There are no rules of navigation which provide how warning of such a maneuver shall be given.
It is further immaterial whether upon the whole case we would have been disposed to hold that the master of the Transfer was guilty of negligence, or that the impact of the blow upon the outside float was not of such force as to raise a presumption of negligence. It may well be that the disturbance caused by such impact was no greater than the displacement which would have resulted from the waves and swell caused by such a tug in passing along up the river without stopping, or in maneuvering to enter the coal and water dock without coming- in contact with any other boat. The sole question presented to us upon this record is whether there was any such evidence of negligence to go to the jury as would be sufficient to justify them in finding that the agents of defendant were negligent.
It appears from the record that defendant’s agents knew that there were people living and working on and about these boats, and that, if a moving boat came in violent contact with them, it might cause injury to such persons. And, while there is considerable testimony to the effect that this blow was so slight that it could not have been communicated through the whole flotilla of boats to the place where the plaintiff was standing with such violence as to throw him down in the manner described, yet we are not at liberty to ignore the testimony of the plaintiff and mate on this point. The plaintiff testified that the first crash knocked his feet from under hini. - His condition sufficiently indicates the violence of the second shock.
The testimony of the mate on this point was as follows:
“I was standing on my feet. I was helping the eaptain. I did not have hold of anything when I fell down. I felt a jar. It affected me as if I was going down. I went. It threw me. It felt like a hard shock. It pitched me for[546]*546ward about two and a half feet. I was on the deck of the boat. I was half of me off the boat — some on the boat and some over. 1 had to catch onto something. I catched onto the dock. That prevented me from falling. I heard the crash. I could not say where that was. * * * This noise which I heard was towards the river. As I was¡ pitched forward, I fell on my hands. The deck, in reference to the dock, was pretty much near level. I lay there flat I answered the court that I caught on the dock, or I would have fallen. But I fell. But I would have fallen into the river if it had not been for the dock.”
It appears, furthermore, from the testimony of the witnesses for defendant that it is the duty of such boats, when about to execute such a maneuver, to have lookouts to notify the master if there are people working in and around the boats, and that, if the lookouts on this occasion had seen any one on the boats, they would have notified the captain, and “in that case he certainly would not have run up against them.” And the experienced master of one of defendant’s transfers, which was lying at the dock at the time of the collision, testified in regard to the custom in the execution of such a- maneuver as follows:
“As a matter of precaution, as a matter of safety to the boats I am coming up against, I have to bring my boat in touch with the adjoining boats in such manner as not to throw any one down, or break anything.”
It appears, further, that the gross tonnage of the Transfer was 102 tons.
In these circumstances, the question of defendant’s negligence was submitted to the jury by the court upon an exhaustive consideration of the evidence and a fair and correct statement of the law applicable thereto, and to which no exception is urged.
We are, therefore, concluded by the, verdict of the jury, and the judgment thereon must be affirmed.
' NOTE. — The following is the opinion of Bay, District Judge, on motion to set aside a verdict:
RAY, District Judge.
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TOWNSEND, Circuit Judge.
The single assignment of error challenges the action of the trial judge in refusing to direct a verdict for the. defendant on the ground either that the defendant was not in fault, or, even if in fault, that plaintiff’s fault contributed to cause the injury.
The contention of contributory negligence need not be discussed. The plaintiff, it is true, when he saw the approaching boat 100 feet away, was in a place of safety, and he put himself in a perilous position where apparently he would be likely to be injured by a very slight jar or disturbance of the water. But this question was one peculiarly for the jury, the burden of proof was upon the defendant, the facts were fairly submitted to them in a charge to which no exception was taken, and their verdict is conclusive upon this point.
A more serious question is presented upon the contention that no negligence has been shown on the part of the defendant. The maneuver executed by the master of Transfer No. 4 appears to have been a usual one in such conditions when it is necessary, and, barring the question of the violence of the jar in contacting with the float, seems to have been properly performed. There is considerable, testimony to the effect that that was the only practicable way in which to reach the coal dock with this boat in a flood tide and with the accumulation of boats at this point.
Furthermore, we find no negligence in the fact that the master of the transfer did not see the plaintiff at the time of the collision. The evidence shows that he was in a position where he could not be seen from the transfer. The plaintiff himself testifies as follows:
“I could not look over tbe cars. Sbe went past tbe cars. I could not see it, as tbe cars were between me and tbe transfer, until after sbe ys-ent by them. [545]*545From the place where I stood, I could not see the boat. The Transfer I saw coming up the riyer, after she passed the line of freight cars on that float.Then I could see her after -that. I could not see it when it was behind that line of cars; but after she passed I could.”
And it appears further from his testimony that at the time of the accident he was stooping over so far, in order to get at the line, that probably his body was out of sight.
Nor do we find any negligence on the part of the master of the Transfer by reason of the claim that he could have seen plaintiff when the Transfer was coming up the river, for the plaintiff at that time was in a place of safety. As he says:
“I was standing on the string piece. I hadn’t stepped down between the boat I was standing on the string piece when I got hit. When I looked down the river and saw the Transfer, I was on the bow of my boat; on the deck. We were just starting to get the rope up with the pike,pole. We had tried it with a pike pole, and were just going to try the other way. At that time the Transfer was headed right up the river, and was, I should judge, about the length of 100 feet from me. * * * She was, I should judge, about 100 feet — not from me, but from the railroad float. She was further out in the river towards the railroad float. She was not opposite the railroad float. The tug was below the railroad float. She was coming up towards the railroad float, outside. She was about 100 feet below the railroad float.”
Nor do we find any negligence in the failure of the master of the transfer to give any signal by means of whistles or bells. There are no rules of navigation which provide how warning of such a maneuver shall be given.
It is further immaterial whether upon the whole case we would have been disposed to hold that the master of the Transfer was guilty of negligence, or that the impact of the blow upon the outside float was not of such force as to raise a presumption of negligence. It may well be that the disturbance caused by such impact was no greater than the displacement which would have resulted from the waves and swell caused by such a tug in passing along up the river without stopping, or in maneuvering to enter the coal and water dock without coming- in contact with any other boat. The sole question presented to us upon this record is whether there was any such evidence of negligence to go to the jury as would be sufficient to justify them in finding that the agents of defendant were negligent.
It appears from the record that defendant’s agents knew that there were people living and working on and about these boats, and that, if a moving boat came in violent contact with them, it might cause injury to such persons. And, while there is considerable testimony to the effect that this blow was so slight that it could not have been communicated through the whole flotilla of boats to the place where the plaintiff was standing with such violence as to throw him down in the manner described, yet we are not at liberty to ignore the testimony of the plaintiff and mate on this point. The plaintiff testified that the first crash knocked his feet from under hini. - His condition sufficiently indicates the violence of the second shock.
The testimony of the mate on this point was as follows:
“I was standing on my feet. I was helping the eaptain. I did not have hold of anything when I fell down. I felt a jar. It affected me as if I was going down. I went. It threw me. It felt like a hard shock. It pitched me for[546]*546ward about two and a half feet. I was on the deck of the boat. I was half of me off the boat — some on the boat and some over. 1 had to catch onto something. I catched onto the dock. That prevented me from falling. I heard the crash. I could not say where that was. * * * This noise which I heard was towards the river. As I was¡ pitched forward, I fell on my hands. The deck, in reference to the dock, was pretty much near level. I lay there flat I answered the court that I caught on the dock, or I would have fallen. But I fell. But I would have fallen into the river if it had not been for the dock.”
It appears, furthermore, from the testimony of the witnesses for defendant that it is the duty of such boats, when about to execute such a maneuver, to have lookouts to notify the master if there are people working in and around the boats, and that, if the lookouts on this occasion had seen any one on the boats, they would have notified the captain, and “in that case he certainly would not have run up against them.” And the experienced master of one of defendant’s transfers, which was lying at the dock at the time of the collision, testified in regard to the custom in the execution of such a- maneuver as follows:
“As a matter of precaution, as a matter of safety to the boats I am coming up against, I have to bring my boat in touch with the adjoining boats in such manner as not to throw any one down, or break anything.”
It appears, further, that the gross tonnage of the Transfer was 102 tons.
In these circumstances, the question of defendant’s negligence was submitted to the jury by the court upon an exhaustive consideration of the evidence and a fair and correct statement of the law applicable thereto, and to which no exception is urged.
We are, therefore, concluded by the, verdict of the jury, and the judgment thereon must be affirmed.
' NOTE. — The following is the opinion of Bay, District Judge, on motion to set aside a verdict:
RAY, District Judge.
No point or question is raised that there was any error in the admission or rejection of evidence or in the charge to the jury. Under all the evidence in the ease a fair question of negligence and of freedom from contributory negligence was presented for the determination of the jury. The plaintiff was very severely crushed and injured from his shoulders to his feet inclusive, and these injuries are permanent, and plaintiff will never be any better or free from pain. In all human probability he will grow worse. He will never be able to dress and undress himself, or do any labor except light work with his hands. Considering his age and his earning power both before and since the accident, and the nature and permanence of his injuries, the damages awarded were not excessive; indeed, they were moderate. There was an abundance of evidence to'sustain a finding of negligence on the part of the captain of the defendant’s tug that ran against the floats and jammed them against the canal boat of the plaintiff where he was at work with his mate in plain sight of the captain of the tug that did the damage going up the Harlem river. If the captain did not see them, he ought to have seen them. He had an abundance of sea room in which to maneuver and turn his tug, and evidently could have run into the water and coal dock without coming in collision with the floats had he regarded it of moment or importance so to do. His evidence disclosed that he was ignorant, self-opinionated, coldblooded, and reckless. He ran into the line of boats moored to this wharf, the canal boat next it, then the scow, and then defendant’s heavily loaded floats with another tug between, recklessly and with great and unnecessary force in any event and with an utter disregard of the safety of those on and about those vessels. The evidence of Samuel Sprague, a witness for defendant, shows [547]*547the captain of the tug in question did what he ought not to have done. The evidence tended to show the collision was exceedingly severe and then persisted in. The evidence of John Johnson, a witness for defendant, and who was on the tug, shows it was the duty of those thereon lo keep a lookout for people on or about boats tied to the wharf and those tied thereto outside, and, if any one was there, not to come in collision. Still the captain of the tug said, in substance, the only purpose of a watch or lookout was to enable them to testify how the injury was done in ease of a collision and resulting damage and not to enable him or make it his duty not to come in collision with vessels tied to a dock. The captain of this tug testified as to the purpose of -the watch on the tug for persons on vessels tied to a dock:
“Q. What did you keep a lookout for? What was the reason for your keeping a lookout? A. It is the rule that we should carry a lookout; that is all the reason I can give you. In case of accident In case of collision, that a man should be there on the bow of the boat to see just what is met with; that is the only reason I can give you for a lookout. Q. Let me see if I understand you. The reason for your keeping a lookout was in case you injured somebody, that you might be able to tell about it? A. Yes, sir. Q. So you might he a witness? A. That is what they are stationed out there for. Q. They are not stationed there for the purpose of warning men of your approach or preventing a collision? A. No, sir. Q. They are simply put there for the purpose in case you do run a man down, and he is drowned, you may be able to testify you saw him go down? A. Yes, sir. Q. That he went down? A. Yes, sir. Q. How you came to put him down? A. Yes, sir.”
This was contrary to the credible evidence in the case. The captain of this tug gave no warning of his approach or that he was intending or expected to strike this fleet of boats — plaintiff’s canal boat innermost and next the dock. The plaintiff was not down between the dock and boat, but standing with his whole body from the hips up in plain view of those on the tug. The collision threw the canal boat against him, and caused him to fall down between the boat and dock, and a second surge of the boat caused by another blow of the tug crushed him. Before getting in this position he looked up and down and saw this tug going up the Harlem river in midstream and nothing to indicate it would or was intending to come in collision. He had no reason to apprehend this tug would go up, turn, and then butt head on into this line of boats. The jury was amply justified in finding absence of contributory negligence, which, indeed, was not pleaded until during the trial by amendment there allowed. All these questions were for the jury. The case was not tried or submitted on any theory that there was any presumption of negligence on the part of defendant arising from the fact of the collision and injury.
The verdict was fully justified, and the motion for a new trial is denied.