[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 381 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 383 The light on the plaintiffs' barge was not in accordance with the navigation acts of congress, but was a light indicating that the barge was at anchor; and if those in charge of the defendants' schooner were deceived by this light, and supposed that the two barges were at anchor, the plaintiffs ought not to recover in this action; because, in that event, they would not be free from contributory negligence, which prevents a recovery in such an action. The want of proper lights on the plaintiffs' vessel is not a defence, if those in charge of the defendants' vessel knew the true state of the facts, and could, with reasonable care, have avoided the injury. (Hoffman v. UnionFerry Company, not yet reported.) In other words, the negligence of the plaintiffs must contribute to the injury. It is not enough that the plaintiffs have been negligent and an injury has occurred; but the plaintiffs' neglect must be the proximate cause to some extent, at least, of the injury. (43 N.Y., 82.)
I agree with the counsel for the respondents that, in a case like this, the presumption of contributory negligence would arise in the absence of proof of facts to repel it. The precise *Page 384 question to be determined in this case is whether there was evidence from which the jury might have reasonably inferred that those in charge of the schooner knew the real facts, and that the barges were a part of the tow. It is not impossible that they did know it, and supposed that they could cross from one side of the channel to the other by sailing over the hawser, or otherwise. If so, they were not deceived by the light on the barge; and it cannot be said that the absence of proper lights contributed to the injury.
The same remark is true with reference to the defective lights on the steamer; and, besides, the plaintiffs are not responsible for the negligence of those in charge of the steamer, as they had no control over them, or the movements of the steamer or her appointments.
In determining whether the nonsuit was properly granted we are, of course, confined to the plaintiffs' evidence alone, without explanation or contradiction; and that evidence tended to prove that the night was not so dark but that objects could be distinctly seen at a considerable distance; that those on board the schooner could and did see the steamer, and the canal boats in tow, and passed close to the latter; and that they could also see the barges which were immediately in rear of the canal boats, indicating thereby, as it is claimed, that they belonged to the tow, and could not have been at anchor; and, in addition to this, that there was ample room for the schooner to pass in the channel on the west side of the barges; and that there was no necessity, nor apparent propriety, for the manœuvre of the schooner in suddenly, changing its course to cross between two tiers of moving boats in a space of about ten rods. Might not the jury have found from these facts that those in charge of the schooner knew that these barges belonged to the tow, and must have been attached by a hawser; and that the attempt to pass between them and the canal boats was unnecessary, imprudent and negligent? I think the evidence is capable of such a construction; and if it had been submitted to the jury, and they had so found, the court could not, according *Page 385 to settled rules, have set aside the verdict as against evidence; and this is the test for determining the propriety of the nonsuit. It is not necessary for this court to decide that they would find for the plaintiff upon this evidence. It is enough that a jury would be justified in so finding; and a verdict either way, upon the evidence alone, could not, in my judgment, be disturbed. There was evidence for the jury to consider, tending to repel the presumption that the defective lights caused or contributed to the injury, and the jury was the only proper tribunal to weigh and determine the proper effect of it.
We feel constrained, therefore, to hold that the nonsuit was improperly granted.
The judgment must be reversed and a new trial granted, costs to abide the event.
All concur except PECKHAM, J., not sitting.
Judgment reversed.