#### Charles Minerly, Jr., App’lt, *v.*The Union Ferry Co. of Brooklyn, Resp’t.

*(Supreme Court, General Term, First Department,*

*Filed February 14, 1890.)*

1. Negligence—Steamboats—Laws 1848, chap. 321.

A failure to comply with the requirements of chap. 321, Laws 1848, in relation to the navigation of the East river, is *prima facie*negligence, but such presumption may be rebutted.

2. Same.

Plaintiff’s boat was run into by one of defendant’s boats. The evidence as to whether plaintiff was as near the center of the river as possible was conflicting, and he gave evidence tending to show that aside from his position he did not contribute to the accident. *Eeld,*that the question was for the jury, and that the court was not justified in dismissing the complaint on the ground of the violation of the statute.

Appeal from judgment dissmissing complaint upon the merits at circuit

*jHenry*Schmitt, for app’lt; *F. A. Ward,*for resp’t.

Yan Brunt, P. J.

This action was brought to recover damages sustained by the plaintiff alleged to have been caused by the negligence of the pilot in charge of one of the ferry-boats of the defendant.

It will not be necessary in considering the only question to be discussed in the disposition of this appeal to state in detail the evidence that was produced on both sides upon the trial of the action. It will suffice to state the general features of such evidence, and the apparent ruling of the court upon certain portions thereof,' in order to come to a conclusion.

The plaintiff in this action was a pilot, having charge and sole control of the Brie Annex Steamer City of Chester, which was accustomed to run between Brooklyn and Jersey City. The defendants own and control, amongst others, the ferry from the foot of Whitehall street, New York, to the foot of Hamilton avenue, in the city of Brooklyn. On the morning of the 7th of August, 1885, the plaintiff left his slip at the Fulton ferry, in Brooklyn, on his usual trip to Jersey city, and he proceeded upon his course until he neared the Hamilton ferry slip at the foot of Whitehall street. A boat, called the Monticello, was coming out from said slip, and another boat, the Brooklyn, was making for said slip on her trip from Brooklyn. The position of the plaintiff’s boat is variously stated by the witnesses on the part of the plaintiff, and of the defendants, the defendants claiming that she was running along close to the pier heads, and very far from the middle of the river, and the plaintiff claiming that, although she was much nearer the pier heads than the middle of the river, yet still she was as near the center of the river as she could be under the circumstances. It was further claimed upon the part of the defendant, and the evidence seemed to establish the fact, that she was proceeding down the river at' a rate of more than ten miles an hour. The Brooklyn and the Chester came into collision, and the plaintiff was injured.

*961Amongst other evidence offered upon the part of the defendants was chap. 321, of the Laws of 1848, entitled “ An act in relation to the navigation of the East river by steam boats” which is in the following language:

Section 1. All the steamboats passing up and down the East river, between the Battery at the southern extremity of the city of Hew York and Blackwell’s Island, shall be navigated as near as possible in the centre of the river, except in going into or out of the usual berth or landing place of such steamboat, and shall not be propelled at a greater rate of speed than ten miles an hour.

Section 2. The master, pilot or engineer of any steamboat violating either of the provisions of the foregoing section, shall be deemed guilty of a misdemeanor; and in addition thereto, the master, pilot and engineer of such steamboat shall respectively be liable to the penalty prescribed in § 9, title 10, chap. 20, of the first part of the Bevised Statutes, to be sued for and applied as therein directed.

It was claimed upon the trial that the evidence showed that the plaintiff’s steamboat was not as near as possible in the centre of the river and that she was propelled at a greater rate of speed than ten miles an hour, and therefore that he was shown to have been guilty of negligence, by this violation of the statute and for this reason it would seem the court dismissed the complaint

This we think was error. The statute nowhere decides that a violation of its provisions shall be negligence as a matter of law. It provides a punishment for the violation, but nothing is said as to the liability of being subject to any other penalty than that therein prescribed.

Under these circumstances proof of the violation of the statute is not such absolute proof of negligence which the court below seems to have considered it. It is undoubtedly true that the failure of a person to comply with the requirements of the statute above referred to is *prima facie,*guilty of negligence. The failure to conform to the statutory requirements may be qualified by circumstances bearing upon the question which may rebut the presumption arising from the failure to comply with the statute, and where there is such a condition of the proof the question of negligence becomes one for the jury in view of all the evidence offered in the case, the statute included. *McRickard*v. Flint, 114 N. Y., 222-227; 23 N. Y. State Rep., 100.

In the case at bar evidence was offered upon the part of the plaintiff from which the jury might possibly have inferred that the violations of the statute which were established by the evidence in no manner contributed to the happening of the accident except the mere fact that by the violation of the statute the plaintiff was in the position in which he was. But even if he was in that position in consequence of his violation of the statute, this gave no right to the other boats in the river to run him down. He had made himself liable to the penalties prescribed by the statute, and he had also made himself liable in case of accident to the presumption that the accident had arisen because of his violation of *962the requirements of the statute, and these were the only burdens which such violation imposed 'upon him.

It seems, however, to have been considered by the court below, that upon proof of this violation all right upon the part of the plaintiff to a recovery for damages sustained in consequence of defendant’s negligence was ended. As already said, we do not think this to be the true rule of law. It placed the burden upon the plaintiff of establishing not only that the defendants were negligent, but that his violation of the statute in no manner contributed to the happening of the accident; the presumption as to his own negligence because of the violation of the statute being ■against him.

The conflict of evidence between the witnesses upon the part of the plaintiff and the defendant as to the hajapening of the accident raised the question as to whether the violation of the statute and the subsequent management of the plaintiff’s boat in any manner contributed to it. This was a question for the jury, and they were to determine whether the plaintiff had given sufficient ■excuse to rebut the presumption which his alleged violation of the statute raised.

We do not think, therefore, that the court was justified in the ■extreme view which it took in reference to this matter, and that it should have submitted the question to the jury, instructing them .as to the effect of the statute in question, and leaving the evidence to them, to weigh and determine, whether the plaintiff had rebutted the presumptions which his violation of the statute entailed.

Under these circumstances we think that the judgment was erroneous, and must be reversed, and a new trial ordered, with •.costs to appellant to abide the event.

Daniels and Brady, JJ., concur.