#### James O’Reilly, Respondent, *v.*The New Brunswick, Amboy & New York Steamboat Co., Appellant.

(City Court of New York, General Term,

January, 1899.)

1. Negligence — Propelling steamboat rapidly through an icy river.

A steamboat corporation, which propels its boat through a river, well filled with ice, at the rate of ten or twelve miles an hour when distant only 150 feet from a partially loaded canal boat lying at a dock, is guilty of negligence, and is liable for the value of the canal boat, which sank in fifteen minutes from a hole in her side made by the rapid and violent displacement of the ice.

8. Jurisdiction — Presumption as to the residence of a corporation not shown to be foreign.

Where neither the answer of a corporation nor the testimony in the case show that the corporation is not a resident of the State of New York, our courts have jurisdiction, although the corporation was incorporated and the cause of action arose in a foreign state.

Appeal from a judgment in favor of plaintiff, entered upon a verdict.

Hyland *&*Zabriskie (Nelson Zabriskie, of counsel), for appellant.

Stewart *&*Macklin (James J. Macklin & La Roy S. Gove, of counsel), for respondent.

Fitzsimons, Ch. J.

The defendant’s boat was engaged in the business of carrying passengers and freight on the Raritan river, New Jersey, on the 28th day of January, 1895, and, while so em*196ployed and coining down the river, it passed a point called “ Isaac’s Dock.”

The plaintiff’s canal boat was lying at said dock laden with a portion of a cargo of fireproofing brick. The river was well filled with ice, particularly at the place in question.

It appeared from the plaintiff’s testimony, that the defendant’s boat was going very rapidly, about ten or ‘twelve miles an hour. That while passing *“*Isaac’s Dock ” she was about 150 feet away. Her quick passage through the ice caused a rapid and violent displacement of the same, causing some of the pieces, many inches in thickness, to strike 'against the plaintiff’s boat with such violence as to break a hole in her side, causing her to sink within fifteen minutes. That the plaintiff subsequently endeavored to float said boat, but found that the cost of so doing would in all probability exceed its value.

These boats, of course, had a right to navigate the river in question and also to land their passengers and freight at the docks along the same, while the plaintiff’s boat was tied to the dock mentioned; it was the 'duty of those in charge of the defendant’s boat to so navigate the same as to cause no harm to the plaintiff’s boat, if careful and prudent management could do so. • ,

The defendant’s servants certainly had no right to drive its boat ahead at such a rate of speed, while so close to the dock in question, as to cause the ice to be. thrown up against the side of the plaintiff’s boat, and thus destroy her. To hold otherwise would be to declare that boats like the one owned by the plaintiff would have no right to navigate on the Raritan river, if their presence retatded the speed of the defendant’s boats. Both of them had a right to be theré and the defendant did not havé the exclusive right.

It was a question of fact for the .jury to decide', whether under all the circumst'ances it wás a negligent act for' the defendant to steam along at the rate of ten or twelve miles an hour, particularly in view of the fact that, on several occasions, just, prior to the day in question, it was called to the attention of its servants, that: the spot in question was a dangerous one to speed fast while passing, and the admission of sudh testimony was proper. This point Was a sort of a cove, where the ice gathered and centred in extraordinary quantity and thickness, making it necessary, in view of the caution given, for the defendant to see to it, that, while passing, care and caution was used, and, if necessary, it was the duty of the person in charge of its boat to slow down her speed and keep as far away *197as she could safely be kept, so as to do no damage to boats like the plaintiff’s, which might be tied there.

■; W® think that the jury were justified in finding that no such care was used, but that the defendant’s servants, on the contrary, were careless and negligent.

The plaintiff’s.boat was a- wreck, apparently, as testified to by plaintiff’s witnesses, and under the circumstances he was not required to raise and,repair her, but had a right to desert her, being a total loss, and sue for her value. We also think that the evidence shows that plaintiff used all proper means to care for his boat during his absence., ■ He left a man in charge of her; he or his man was not bound to be always onboard his,boat. • Only ¡such care was necessary as was required by surrounding circumstances, and which a prudent man would use. 'In this instance such care was taken, and, even if plaintiff was actually on his boat, he could not have done any more to have saved her .than was done,by his map in charge. In fact, we think that nothing could have been done by any fine to save her, the uncontradicted evidence showing that she sunk within fifteen minutes;-and we also think that.nothing, could have been done to avert the danger which caused her destruction. Heither the plaintiff or the man in charge could have kept the ice from striking against her side. On the whole, we think that the evidence shows that the damage done the plaintiff was caused entirely because of the defendant’s negligence, and that plaintiff was free from contributory negligence.

Although the defendant is a foreign corporation, the cause of action accrued in Hew Jersey, and this court has jurisdiction of the action because it does not affirmatively appear, either in the defendant’s answer or in the testimony, that plaintiff is not a resident of this state.

His residence here will, therefore, be assumed, thus conferring jurisdiction upon this court. Sims v. Bonner, 21 Civ. Pro. 380; 42 N. Y. St. Repr. 15; 18 Week. Dig. 288. The judgment is affirmed, with costs.

O’Dwyer, J., concurs.

Judgment affirmed, with costs.