This is the third time this case has been before us. On the former appeals the judgments for the plaintiff were reversed on the ground that no negligence on the part of the defendant was proved. Subsequent to the last reversal a third trial was had at the Circuit and the plaintiff was nonsuited in obedience to what was supposed to have been the ruling of this court. That nonsuit was set aside on appeal to the General Term of the Supreme Court, and a fourth trial was had, resulting in the recovery of a judgment by the plaintiff, which has been affirmed by the General Term, and from that affirmance the defendant has appealed here.
The action was commenced on the 18th of December, 1873, and from that time it has been fought with great tenacity by both sides. The case is a strong illustration of the uncertainties inherent in the application of well-known and easily-understood principles of law to facts as they appear on different trials. One side contends that the facts now before us are substantially the same as those which have been passed upon by this court in the former appeals, while the other contends that the principal question for us now to determine has never been decided adversely to him by this court, nor has it been presented on its merits as it now stands.
We must take the case from the record now before us, and if the plaintiff made out a case to go to the jury we cannot interfere, although the defendant should claim that the evidence on the part of the plaintiff was so contradictory as to be unworthy of belief. In general the credibility of witnesses is for the jury to pass upon, and this court has no function of that kind to perform. *Page 303
Some things have been adjudicated in the former appeals, and are not now open for discussion. It has been decided that the plaintiff was on the boat in the character of a passenger, and the defendant owed him the duty which a carrier of passengers owes to a person in its charge as such. It was conceded then, and is not denied now, that the defendant had on its boat all the appliances necessary and proper to prevent such an accident. It was stated on the first appeal that it was plain the accident would not have happened, but for an extraordinary and unprecedented concurrence of circumstances, viz.: the attempt of three rash persons to regain the land after the boat had started; then the heedless and unthinking rush and pressure of a crowd of passengers of ordinary sobriety and prudence, and then the wrongful opening of the gate by an unauthorized person. Had not these three things conjoined, the court could not say that the plaintiff would have been harmed.
Upon the trial now under review the plaintiff claimed that the defendant was negligent in not closing the gang-way before the boat started, as it had ample means for doing so, but failed to use them. He also claimed that in starting the boat before the gang-way was closed the servants of defendant disobeyed its standing orders, which he stated were to close and secure the gang-way as soon as the gang-plank was hauled and before the boat started. The plaintiff's counsel argues that there is a difference which is most material between the fastening of the gate itself before the boat started, and putting in place the rail (which was put on top of the gate), and stanchions before such starting. It was held on the first appeal that defendant was not chargeable with negligence in not putting in place the rail and stanchions before the boat started. Judge FOLGER said that experience had not shown that danger was to be apprehended from that source, or that it was necessary to be guarded against. (68 N.Y. 306, at 313.)
In order to see precisely what the case now before us is, it is best to take some extracts from the evidence, on the part of the plaintiff, as to what was the condition of things when the *Page 304 accident occurred. I will take the evidence of the plaintiff and his friend Schwab who accompanied him, which is as favorable an account for him on the facts as can be found in the record.
Having approached the boat, which was lying at its slip in New York city a short time prior to its departure on the 8th of September, 1873, at six o'clock P.M., the plaintiff and his friend boarded it on its starboard side, a little aft the wheel-house, the boat heading towards the west. They went from the dock down on the boat by means of a gang-plank about the width of the gang-way opening, and which plank was guarded with rails on each side. Continuing, the plaintiff says: "I went on the boat and turned around, took my handkerchief out of my pocket and waved it to my friends on the pier. Just at that time, I think, the boat started. I heard an order to cast off or throw off the line — something like that. I did not understand about it, and the boat started. Just at that instant somebody from back in the crowd — back in the boat — came running through the crowd hallooing and coming pretty fast, rushing against the people and coming towards the edge of the boat to get off. The boat was going — had gone quite a distance — probably twenty-five feet. It had swung out away from the pier twelve or fifteen feet, I should think. This man jumped out of sight overboard. There was a man that was there by the gate. The people hallooed `man overboard,' and immediately there was a big rush that pushed seven or eight of us in immediately. I heard the order to haul in the gang-plank. I didn't understand whether it was to haul in or haul out. I know it was swung out on the pier. They raised the end on the boat and swung it in, just raised it up and swung it back on the pier. Just at that time the hawser was cast off, going on at the same time; there was men right there, had the big lines in their hands then, right at the edge of the gang-way. That was at the same time the hawser was being hauled up. They swung it up and commenced hauling up the hawser at the same time. The boat was going. The mate had the gate. Mr. Mull was the mate. *Page 305 At the time this man came through, Mr. Mull was standing partly in front of the gang-way opening, at the post this gate sets on. He had the gate. I suppose he was in the act of putting it in. He had the gate in his hand, partly in front of the gang-way opening; as this man came through he partly turned; he had hold of the gate some way with both hands; this man passed right by through there along the boat, outside of this guard, and stepped right along on that and jumped. I was pushed overboard right there. There was no gate in. I didn't see the gate after that; it was knocked out of the way, at least it was not there when I got to it."
The testimony of Schwab is substantially corroborative of this. He says the gate had not been closed before the accident happened; "there was a man had hold of the gate. He had it in his hand and in the act of putting it in. The man was in the act of putting the gate in, about as the crowd came and pushed along."
As to the alleged standing order of the defendant not to start the boat until the gang-way had been closed and secured after the hauling in of the gang-plank, the evidence does not come up to the allegation. The evidence of Keller, a deck-hand, was that the orders were to close the gang-way as soon as the plank was hauled. He says nothing as to this being done before the boat started. He also says it would take two or three minutes to put in the gate and secure the gate-way opening. Mr. Mull, the mate, said there was a general standing order to close the gate immediately upon hauling the gang-plank. Mr. Scoville was clerk on board the boat, whose duty kept him in the office, where he sold tickets, and he had nothing to do with the running of the boat. He was called by the defendant, and upon his cross-examination by plaintiff's counsel, he said that he had always understood that one of the standing orders on the boat was that the gate must be closed and secured before the boat started, although he admitted that he had never heard the order given.
There cannot be said to be any proof that the order was to close and secure the gate before the steamer started. *Page 306
Now, upon this evidence, which is at least as favorable to the plaintiff as any in the case, we are bound to say there is no proof of negligence on the part of the defendant.
It appears that as soon as the signal was given, the gang-plank was hauled up and the boat started. Immediately upon the hauling up of the gang-plank the mate started for the gate and brought it to the gang-way opening, and was in the very act of setting it in position when the man brushed by him and jumped. At this time the boat had only moved thirty-five or forty feet along the pier, and was about twelve or fifteen feet away from it, and yet in that brief period the mate had almost accomplished a secure shutting of the gate. To say that the boat should not have been allowed to move a foot from the dock until this gate had been thus securely fastened and the rail and stanchions placed in position, is to decide the matter in view of the facts which subsequently occurred, and not from the circumstances existing prior thereto. It was an accident which could not, as I think, have been reasonably anticipated. The attempt of a belated man to jump from the boat to the wharf immediately after the starting of the boat, his failure to reach the dock, and his consequent falling in the water; the cry of "man overboard," the instantaneous rush of a crowd of ordinary passengers towards the side of the boat whence the cry proceeded, and the shoving of the plaintiff overboard, altogether form such an extraordinary and theretofore unheard of combination of circumstances that the failure to foresee their possibility and to guard against their happening cannot, in any fair or proper view of the subject, be called negligence. The mere fact that an accident of the kind has never before happened may not be enough to avert the charge of negligence. If it might reasonably have been anticipated, or if its occurrence would not, in the minds of reasonable men, be in the highest degree unlikely, if things were left in the condition then presented to them, the charge of negligence might be a proper one for the jury to pass upon. (Dougan v. Transportation Co., 56 N.Y. 1;Hubbard v. City of Yonkers, 104 id. 434.) *Page 307
But here is a case where an accident of the nature proved not only never happened before, but it resulted from causes which no human being up to that time could reasonably expect to concur.
In this view it is wholly immaterial whether the mate, when he heard the voice and turned around, did so for the purpose of letting the man through the opening, or only for the purpose of seeing what was being done, with a view to perform his own duty more intelligently. It was not to be anticipated that the man would make an ineffectual effort to jump to the dock and fall in the water, and that then all the other circumstances should occur which resulted in shoving the plaintiff overboard.
The accident, upon the proof in the case, looking at it in the most favorable light for the plaintiff, was the result of causes for whose existence no one was legally responsible.
The judgment should be reversed and a new trial ordered, with costs to abide event.
All concur, except RUGER, Ch. J., dissenting.
Judgment reversed.