APPEAL by the plaintiff, the Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on
the 14th day of November, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 16th day of November, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
Evan Hollister [Rogers, Locke & Babcock, attorneys], for the appellant.
George Clinton [Clinton, Clinton & Striker, attorneys], for the respondent Pioneer Steamship Company.
John B. Richards and Fred W. Ely, [Brown, Ely & Richards, attorneys], for the respondent Hand & Johnson Tug Line.
This action was brought to recover damages to plaintiff's ore unloaders, situate on plaintiff's private ore dock near Buffalo. This dock forms the easterly side of a canal constructed and maintained by plaintiff on its own premises, connecting at its northerly end with that portion of Lake Erie known as Buffalo harbor, and extending thence south some 3,900 feet. The canal is 200 feet wide and has been used by many vessels in unloading ore at the dock since it was opened in about 1904. On this dock unloaders, also known as hoists, are placed. They are huge structures, equipped with trucks, which rest on rails on the docks, along which they can be independently operated in either direction by their own power. The manner in which these hoists operate in discharging a cargo is not important to be now considered. It is sufficient for the present purpose to say that as built a large heavy girder at right angles with the dock was the backbone of the machine. This girder was seventy-two feet long, six feet in depth and twelve to fourteen inches in width. The top of the girder was twenty-two feet above the face of the dock, was longer than the bottom, and extended westerly beyond the face of the dock fourteen inches.
Defendant Pioneer Steamship Company's freight boat, the steamer McGean, had been loaded with ore, consigned to plaintiff, and arrived at this dock in the forenoon of the day of the accident. Its cargo was discharged during the day and evening by the use of three of these unloaders operated and
under the control of plaintiff's servants. These three unloaders are designated beginning with the northerly one as Nos. 1, 2 and 3; as they were placed on the dock their centers were parallel and forty-eight feet apart. Before the discharge of cargo had been completed the mate of the McGean, as directed by the captain, telephoned to the office of defendant Hand & Johnson Tug Line for a tug to take the McGean out of the canal. The agent declined to undertake the job with one tug, and thereupon by the captain's direction it was agreed that two tugs should be sent. The fact that the tug company declined, as its agent replied when the mate asked for a tug, to take the chances of taking the McGean out of the canal with only one tug, is unimportant, as the chances which the tug line declined to take were not then explained; and the jury may reasonably have concluded that the chances referred to did not relate to the actual movement of the McGean from the dock. Two tugs, the Delta and Hebard, were sent, arriving shortly before the discharge of cargo was finished. The McGean lay with its stern to the north; i. e., towards the mouth of the canal, and its port side, therefore, was next to the face of the dock. The Delta took position at the stern and the Hebard at the bow of the McGean, and each made fast its tow line. The discharge of cargo completed, and the lines by which the McGean was held to the dock cleared, her captain sounded the 'O. K.' signal, signifying to the tugs that the boat was ready to leave the dock. The stern tug then started across the canal pulling the stern of the McGean out away from the face of the dock some fifteen to thirty feet, then changed its course, heading directly down the canal towards the harbor. The bow tug lying across the stem of the McGean did not at this time pull the bow of the McGean away from the dock. Pulling the stern away from the dock without at the same time moving the bow away, had a tendency to throw the bow in towards the dock, which was accentuated by a westerly wind which is described as fresh, and was apparently about thirteen to fourteen miles an hour. When this movement of the McGean was begun, No. 3 unloader was, of course, the one nearest the bow of the boat, and that was distant about 250 feet from the part of the boat that
subsequently collided with the unloader. This boat is of the ordinary type of lake freighters, and is 452 feet long and 52 feet wide. The deck amidships is known as the spar deck. Forward its construction is much higher than this deck, the part of the boat, which we may call the bow, rising above the main or spar deck some feet and the forecastle deck is here located. The shell of the boat forward rises in a curve from the main deck to form the sides of the forecastle, the exposed part forming the forecastle bulwark. The upper part of this bulwark is by some of the witnesses designated the ogee curve. As the stern tug drew the McGean northerly, the bow of the latter was close to the face of the dock, its rate of progress being about two miles an hour, and some part of it struck an angle iron, a part of the construction of No. 3 unloader, bending it slightly, but doing no serious damage. Still moving northerly the top corner, the ogee curve, of the port side of the bulwarks at the after part of the forecastle deck caught the projecting girder of No. 2, moved it a short distance along the tracks and tipped it over against No. 1, wrecking the machines.
The action is the ordinary common-law action for negligence, the negligence of the defendants as charged being negligent and unskillful management of the McGean in taking her from the dock, to which alone it is claimed the collision was due. Each defendant claims that no negligence on its part was shown, and that in any event it appears that plaintiff's negligent construction and maintenance of the unloaders with the ...