The O'Brien Bros.

258 F. 614, 170 C.C.A. 68, 1919 U.S. App. LEXIS 1263

• Court: Court of Appeals for the Second Circuit
• Decided: May 14, 1919
• Docket: No. 223
• Status: Published

Opinion

HOUGH, Circuit Judge

(alter stating the facts as above). [1] We agree with the court below that the tug was at fault for not maintaining a vigilant and efficient lookout. It is plainly proven that observers on the bluffs, distant several hundred feet from the scene of disaster, saw all the vessels concerned and were able to state with accuracy the circumstances of collision.

Appellants urge in excuse that the shadows of the high shores of the harbor rendered it easier to perceive what was going on from the top of the bluff, than from the low deck of the advancing scow. Neither the evidence nor general knowledge justifies the distinction; but, giving all the weight that can be claimed for it, we are still of opinion that any competent lookout could and should have seen the Zita and perceived that she was nearly still, long before the vessels were only a boat’s length apart.

[2] We cannot, however, agree that the Zita was without fault-She had an apology for an anchor, yet could hardly he called an anchored vessel; she was assuredly not under control; yet the crew of one man, after having his attention called by a passenger to an obvious danger, did nothing but betake himself to his engine, where he could not see overboard. He acted as if the very smallness of his boat, or some privilege inherent in pleasure craft, entitled him to cast all the burdens of avoiding collision on the other vessel. There is no legal distinction in respect of the rules of navigation between vessels operated for pleasure and for profit, between large boats and small ones, or 'those with a numerous crew and those operated by one man. The Zita also was at fault for maintaining no lookout, and neglecting all the precautions incumbent upon her whether regarded as anchored or not under control.

[3] This finding of fact requires modification of the decree appealed from so far as it covers the claim of Leyare individually against the owners of the O’Brien Bros. The personal negligence of Teyare contributed to this disaster, and he can recover but half his damages, and against him are awarded the costs of this appeal.

[4] The foregoing, however, does not affect the rights of third parties who were injured by the concurrent negligence of two vessels, upon one of which they were passengers. The Hamilton, 146 Fed. 724, 77 C. C. A. 150, affirmed 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264.

[5] As stated above, one of the passengers was Leyare’s wife. She was drowned, and Eeyare as her personal representative has been awarded $6,000. The administrator of the other woman passenger has received $5,000.

Appellants insist that the evidence furnishes no basis for awards of this size, or indeed for any substantial recovery. The claims rest on the statutes of New York creating a cause of action for death by wrongful act (Code Civ. Proc. § 1902 et seq.), and the amount of recovery is (in the absence of a jury) “such a sum as * * * the court * * * deems to be a fair and just compensation for the pecuniary injuries' resulting from the decedent’s death to the person or persons for whose benefit the action is brought.”

Both the decedents were women of mature years, married, living with their husbands, and performing the usual duties of housekeepers of families in moderate circumstances. Both were childless, and their surviving husbands are apparently the sole beneficiaries of whatever recovery may be had herein. Under such circumstances, we think it so plain that the awards were reasonable in amount that no further discussion of the matter is necessary.

It is true that Ueyare as administrator thus obtains a substantial' recovery for the decease of his wife, to which his own personal negligence contributed. But as he sues in a representative capacity, it is -the settled construction of the statutes above referred to that the individual negligence of one who claims in a representative capacity is not to be imputed even though the same person receives individually that for which he sues as representative. McKay v. Syracuse, etc., Co., 208 N. Y. 359, 101 N. E. 885; Braun v. Buffalo, etc., Co., 213 N. Y. 655, 107 N. E. 338.

The cause is remanded, with directions to modify the decree as hereinabove required. The claimants other than Ueyare individually, who appeared by one counsel in this court, will recover one bill of costs on this appeal.