Plaintiff’s intestate was killed on the morning of March 24,1903, while employed as á floatman upon one of the "car floats lashed to *881the steam, tug known as the John L. Brainard, and Belonging to and under the control of the New York Dock Company. The accident resulted directly from a collision with the car floats lashed to the steam tug Transfer No. 10, which was proceeding from the Brooklyn side of the East river to docks of the Jersey Central railroad in New Jersey, the John L. Brainard coming from New Jersey in the opposite direction. Both floats were loaded with cars, and in the collision cars on the John L. Brainard were thrown from their position upon the tracks in such a way that plain tiff’s intestate was caught between them and crushed to death. The defendants at various stages of the trial moved for a nonsuit, and this motion was renewed at the close of the evidence. The court reserved decision upon the motions and submitted five questions to the jury, which were answered generally in favor of the defendants, and the court, after discharging the jury and about one week subsequently, granted the motions directing judgment dismissing the complaint as to both the defendants. The plaintiff, in appealing, contends that this action on the part of the trial court was error; that the dismissal of the complaint after the special verdict of the jury was in effect a dismissal on the merits, which is not permitted under the Code. The plaintiff formulates her contention as follows: “The question therefore presented in this case is, Were the defendants or either of them entitled to a nonsuit when their motions were made ? If not, it is submitted that the special findings of the jury could not be resorted to or used by the court as a basis for a nonsuit and that a dismissal of the complaint based upon such findings would be erroneous inasmuch as such a dismissal would necessarily be upon the merits, and this the statute does not warrant or authorize.”
We are unable to see the force of this suggestion. The provision of section 1181 of the Code of Civil Procedure is that “ When a motion is made to nonsuit the plaintiffs or for the direction of a verdict, the -court may, pending the decision of such motion, submit any question of fact raised by the pleadings to the jury or require the jury to assess the damage. After the jury shall have rendered a special verdict upon such submission or shall have assessed the damage, the court may then pass upon the motion to nonsuit or direct such general verdict as either party may be entitled to.” ' *882The court in this case-had before-it merely a motion for a nonsuit. The only issue tendered by the complaint was the alleged negligence of the defendants in the navigation or management of the floats.which came into collision, and this question was submitted to the jury, and the jury held that there was not sufficient evidence to show negligence on the part of the persons managing either of the floats, and this verdict was sufficient to entitle the defendants to the direction of a verdict in their favor. The jury had been dismissed ; there was no motion for the direction of a verdict, but the court did grant the motion, decision of which had been reserved with the consent of the plaintiff, to dismiss the ■ complaint, and the plaintiff has the advantage of a judgment of nonsuit, rather than of the direction of a verdict, to which the defendants w-ere entitled. The provision of the Code of Civil Procedure that after the jury has passed upon the submitted questions, the “ court may then pass upon the motion to nonsuit,” etc,., is meaningless, unless it is intended to provide for a case in which the court, being in doubt, submits a question of fact for determination, and the jury, agreeing'with the court that there is a failure of the evidence necessary to support “ any question of fact raised by the pleadings,” the motion to nonsuit is granted. It is not a determination of the whole case upon the merits ; it is merely the determination of some specific fact, and on the determination of that fact the court is called upon to' pass upon the motion to nonsuit.' The judgment is not one upon.'the merits; it is merely a nonsuit, in this, particular case the plaintiff having had the opportunity of going to the jury upon a controlling question, while the defendants appear upon this ' appeal with the advantage of a verdict of a jury- which in effect says there was no evidence on which they-might properly find the defendants guilty of negligence, and the evidence is to be examined, not under the general rule which gives to the plaintiff-upon appeal the right to the most favorable' inferences to be drawn from the evidence, but practically whether the evidence was such as to warrant the jury in its determination. The court had no power to dismiss the complaint upon the merits (Levy v. Grove Mills Paper Co., 80 App. Div. 384, 386); it had only power to grant the motion for a nonsuit, and the special verdict being made a .part of the record on appeal, and this court having the power to “ direct such *883judgment thereon as either party may be entitled to ” (Code Civ. Proe. § 1187; Hoey v. Met. St. R. Co., 70 App. Div. 60, 62), it only remains to inquire whether the evidence in this case was such as to require the jury to reach the conclusion that the defendants were negligent in the operation of these floats, which are large barges constructed for the purpose of conveying freight or passenger cars and towed to their destination by steam tugs.
The evidence was undisputed that on the morning in question there was a heavy fog; that the boats or barges were approaching each other, sounding fog warnings at intervals; that they were seen by the respective captains of the tugboats who were in charge of the navigation of the craft when from 200 to 500 feet apart; that danger signals were given, and that the engines on each of the tugs were reversed, and apparently that everything that could be done was done to avert the collision.' There was no expert evidence introduced as to the proper method of handling these floats; no negligence is'suggested.as to the method of towing these boats, and all the evidence before the jury tended to show that the boats, operated at half speed in the fog, were operated with ordinary care. Under such circumstances, the mere fact that a collision has occurred and that some one has been injured does not establish actionable negligence, and the verdict-of the jury was clearly in harmony with the evidence. This being the case, the court was justified in granting the motion for a nonsuit upon the coming in of the special verdict, and the judgments and order appealed from should be affirmed.
Hirsohberg, P. J., concurred.
Judgments and order reversed and new trial granted, costs' to abide the event.