#### Herbert Polhamus, Respondent, *v.*The Cornell Steamboat Co., Appellant.

(County Court, Ulster County,

November, 1900.)

Negligence — Improper navigation of a towboat, causing a collision with a fisherman.

Where the pilot of a towboat, steaming on a moonlight night a little west of north and about the middle of a river half a mile wide, sees a fishing boat, showing proper lights and nearly stationary, a mile ahead in the middle of the river, and, after keeping his course until within two hundred feet of the fishing boat and then discovering that her crew are pulling in a net which runs to the eastward, unnecessarily changes his own course to the eastward, thereby runs into the net, cuts it in two, and runs up to within two feet of the stern of the fishing boat, the pilot is guilty of negligence and his owner is liable to the owner of the fishing boat for the injury done to the net.

Appeal from a judgment of a Justice’s Court in favor of the plaintiff.

*696Amos Van Etten, for appellant.

R. L. Garretson, for respondent.

Sanderson, J.

The only question submitted to me on this appeal is whether the defendant was guilty of negligence in navigating its boat on the night in question by which an injury happened to plaintiff’s net. The evidence shows that a question of fact exists in the case, and the trial court having decided that the defendant was negligent this court cannot review that decision.

It is true that the conflict of evidence is very slight, but the facts testified to by the plaintiff and his witnesses are such as to fully warrant the justice in rendering judgment for the plaintiff.

The night in question was a clear moonlight night. The father of the plaintiff was fishing with his son’s net. The fishboat was in the middle of the river which at this point was half a mile wide. The fish net was to the eastward of the boat and reached to within 200 feet of the shore.

The river was calm, and the tide at slack water. The fishboat was well lighted and distinctly visible at a considerable distance. Between twelve and one o’clock in the morning the defendant’s tugboat “ Columbia,” having eighteen loaded canalboats in tow, was sighted at a distance of half a mile to a mile south of where the fishboat laid. The fishermen were pulling in their net, and their boat laid almost motionless in the water. The pilot of the “ Columbia ” sighted the fishboat at the distance of about a mile, as he states. The tugboat was in the middle of the river headed slightly towards the west and moving at the rate of about three miles an hour. The evidence shows that had she kept the course she was sailing in no accident would have happened, and the collision that subsequently occurred would have been avoided. The evidence does not clearly show that the pilot of the tugboat knew that it was a fishboat he was approaching, and that the persons in it were fishing, but the inference is almost irresistible that he did. When within a quarter of a mile of the fishboat, as plaintiff’s witnesses state, or within 200 feet, as the pilot of the tug testifies, the course of the tug was changed to the eastward. She then ran to within two- feet of the stern of the fishboat, where the bow o£ the tug caught the net, pulling it out of the rowboat, cutting it in two and dragging the rowboat alongside of the tugboat. Under *697these circumstances the owner of the tugboat was clearly liable for the damages occasioned by the collision.

There is no sufficient reason why the tugboat changed her original course. It was the duty of the tugboat to have kept away from the fishboat, which was lying almost motionless in the water. There was another fishboat about half a mile up the stream, but this does not furnish any reason for changing the course of the tug. According to the testimony of the pilot of the tug, at the very time he changed his course to the eastward he discovered that the men in the rowboat were pulling in a net. This is an additional reason why he should have continued the course of his boat to the westward. The buoys of the net lying to the eastward were all visible, and there is no reason why he should not have seen them if he had chosen to do so.

Again, if the rules of navigation required the tugboat to go to-the eastward of the fishboat, then the tugboat should have been kept far enough to the eastward to pass over the net in safety, and no reason is given why this was not done. Instead of taking either of these methods to avoid a collision, the tugboat approached to within two feet of the rowboat lying almost motionless, which resulted in the accident in question. It seems to me that here is negligence of a very gross character, certainly all that the law requires to render the owner of the tugboat responsible for the damages that ensued.

There is nothing in the rules of navigation that justifies the pilot of the tugboat in taking the course that he did.

The judgment of the justice is affirmed, with costs.

Judgment affirmed, with costs.