The D. R. Martin

7 F. Cas. 1106, 10 Ben. 532

Opinion

BENEDICT, District Judge.

The evidence given by the wheelsman who was at the wheel of the D. It. Martin with the pilot and who is called as a witness by the owners of the D. Ii. Martin in respect to the collision which forms the subject of these two actions, is decisive of the controversy. It appears from the testimony of this witness, that the D. R. Martin on her down trip and when bound for her landing, at the end of the pier at the foot of Le Roy street, in the North river, felt obliged, by reason of a vessel approaching from below, to sheer in close to the piers. While the D. R. Martin was proceeding at her usual full speed, and approaching the Hoboken ferry, which is just above Le Roy street, the Hoboken ferry-boat Moon-aehie was observed by the pilot to be moving out of her slip on her regular trip from her ferry-slip in New York, to her slip in Ho-boken. Immediately on seeing the ferry-boat at the mouth of the slip, the engine of the D. R. ’Martin was reversed with, all possible speed, the danger-bell being given to the engineer to ensure the greatest activity on his part, notwithstanding which the D. R. Martin struck the ferry-boat just off the mouth of the slip, doing damage. It thus appears that the Martin was proceeding close along the piers towards the Hoboken ferry-slip, at such a rate of si>eed that it was impossible for her, after the ferry-boat came in sight moving out of the ferry-slip, to stop her headway before reaching the ferry-slip. That slip is so situated that by reason of sheds constructed upon the piers on each side, it is impos-siblo. for any one on board the ferry-boat to see a vessel coming down the river, until she is close at the mouth of the slip, and equally impossible for a boat approaching from above to see a ferry-boat moving out, until she appears at the mouth of the slip. This condition of the slip was known to those on board' the D. R. Martin, who also knew that there was a ferry-boat in the slip about to come out, the latter fact being indicated by the presence of the .inbound ferry-boat in full view waiting for the Moonachie to come out. Under circumstances such as these, it was negligence on the part of the Martin, when running near the piers and approaching the ferry-slip, to be going at a rate of speed that rendered it impossible for her to stop her headway before reaching the ferry-slip. I do not say that it fvas negligence for bar to come down sufficiently near to the piers, above the feriy-slip, to enable her to make her landing at De Roy street; but I do say that it was negligence to approach that ferry-slip at such a rate of speed as to render it impossible for her to stop in time to avoid hitting a ferryboat, in case one should happen to come .out at that time. Her ability to pass the slip in safety, at the rate she was going, was made to depend simply upon the chance that no boat should be coming out; and she had no right to run that risk. A lower rate of speed would have enabled her to make her landing without risk of collision, and no necessity existed warranting the rate of speed at which she was running. How many miles per hour she was running may be a subject of dispute—I do not undertake to fix the number; but there is no disputing the fact that the moment the ferry-boat appeared at the mouth of the slip, all the bells, including the danger-bell, were pulled on board the D. R Martin, but it was found to be impossible to stop her before reaching the mouth of the slip. Such a speed in that locality I hold to be negligence.

I find no fault in the ferry-boat for the weight of the evidence is that she was passing out of the slip at the lowest rate of speed possible. If I found the fact to be, as is contended by the D. R. Martin, that the ferryboat was moving out at her full speed or nearly so, I should consider her in fault likewise, inasmuch as the character of that locality and slip requires the greatest care on the part of the ferry-boat, in moving out of tiie slip. But the weight of the evidence is that in this instance the ferry-boat was moving out as slowly as was possible. It is claimed that the ferry-boat was in fault for reversing her engines, and in endeavoring to get back into the slip, instead of going ahead when she saw the D. R. Martin. Several witnesses who saw the disaster express the opinion that there would have been no collision if the ferry-boat had kept on. The pilot of the Martin thinks that if the Moon-achie had kept on instead of endeavoring to get back to the slip, he would have cleared her by twenty feet. But if it was a mistake in the pilot to back when he did, it was not a fault that renders the ferry-boat liable, be-ca use it was caused by the danger created by the close approach of the Martin at a high and improper rate of speed.

There must be a decision in favor of the libellants, in the first case, with an order of reference to ascertain the amount of the damage. In the second case, the libel must be dismissed, with costs.