Opinion
Argued September 24, 1872
Decided January term, 1873
John H. Reynolds for the appellant. W.A. Beach for the respondent.
Unless the judge at circuit would, upon all the evidence in this case, have been authorized to have taken it from a jury upon the ground that negligence, chargeable to the Griswold or its tow, contributed to the collision, we are without jurisdiction to disturb the finding that it did occur without contributory negligence on the part of either of them. The regulations for the government of pilots required that the Griswold should have side lights. She had none. It cannot be denied that the omission to comply with this regulation was a negligence rendering the owners of the Griswold liable for all damages resulting from their noncompliance with it; but unless the collision resulted from the absence of the side lights, or their absence contributed to the disaster, the omission to provide and use them is not a matter in extenuation of or in defence of the defendant's wrong. These lights were not required for use in daylight. When the collision occurred it was very clear moonlight; so clear that, shortly before it occurred, the tow of the Griswold was seen by the crew and wheelsman of the St. John, at a distance of two miles. The St. John, when passing the Griswold, was 100 feet west of her, and would, had she kept her course, and not sheered in toward the tow, have passed it without harm to either. The evidence at least tended to prove that the injury resulted solely from causes other than the lack of side lights; and hence it became a question of fact, and not exclusively of law ( Hoffman v. The Union Ferry Co., Brooklyn, 47 N.Y., 176); and, in the absence of any evidence that the St. John was misled by the want of these lights, the inference is so clear that the absence of them did not contribute to the injury that we ought not, if we had the power, to disturb the finding.
The plaintiff lost the use of his boat while undergoing repair, as well as the interest upon the cost of the repairs, and was entitled to recover the loss he sustained thereby.
The judgment should be affirmed.
All concur.
Judgment affirmed.