Behan v. Mayor of New York

Brown, J.

On the sixth of July, 1884, at about 1 o'clock a. m., the libelant’s barge, loaded with coal, while lying along the end of the pier at the foot of Seventy-ninth street, on the East river, was flooded by a sudden rush of water through the main sewer, partly beneath which the boat then lay. The dock was a short crib-dock; the main sewer was a very large one, draining about 50 blocks; and at the place of discharge it was about five feet high, and about four feet broad upon its flat bottom, which w,as from one to two feet above low water.

The libelant’s boat was consigned to Seventy-ninth street. It had arrived there on the thirtieth of June, and lay along the end of the wharf, outside of other boats, waiting for a chance to discharge, until the fifth of July, when it reached a position immediately against the end of the wharf, and under the sewer. During the 5th there were occasional light rains, and more or less of a continual discharge from the sewer, which the libelant observed. It was not sufficient to do any harm, and it did not occur to him that he was in danger from a sudden shower. This danger, however, was known to other boatmen. They were accustomed to take precautions against it, through the use of boards to keep off the water, or in fending off from the wharf. The libelant had never been there before, and it does not appear that any one. told him of his danger.

At about 11 p. m. of July 5th there were indications of a heavy thunder shower. The thunder and lightning became sharp and heavy, and the libelant, to avoid seeing it, went down into his cabin. A heavy shower followed, and the libelant was startled by hearing the noise of water and by the trembling of his boat. As he started to go up tbe cabin be met the water pouring down the companion way. In about four minutes, as be says, bis boat was filled and sank.

It is impossible to bold, as it seems to me, that the sewer was not rightly and lawfully constructed, so as to empty at the end of this short dock. The sewerage bad to be discharged somewhere, and this sewer was constructed by the city on its own property. It was not a nuisance. It was not an unlawful obstruction. The use of that dock for boats was subject to its use for the sewerage, as it visibly existed. The dock wa‘s not a pile-dock, so that tbe sewer could have been capped at tbe end, and tbe discharge of water effected at tbe bottom. Nothing was out of repair. Tbe city collected wharfage for the use of this wharf from vessels that moored there; but there was no person in attendance to give notice of liability to a great discharge of water from the sewer in case of a sudden shower. Persons came and went as they chose, being liable only to a demand for such use of tbe wharf as they made. I do not think tbe city was bound to keep a person in attendance at tbe wharf to notify boatmen coming there that they must look out for the water that might be discharged from the sewer. Tbe liability to this danger was sufficiently obvious from the great size of the sewer, which was itself an indication that at times large masses of water were expected to run through it. The sewer opening rose some four feet above the deck of the libelant’s boat at low water. The visible approach of a heavy summer shower was itself a further indication of the impending liability to a sudden great outpouring of water. I think, therefore, the accident must be attributed to the want of proper caution by the libelant in respect to a danger which was visible and sufficiently obvious to a man of ordinary inteligence; that the libelant, in mooring there, did so subject to these obvious risks; and that no negligence is legally.afctributable to the corporation.

The libel is therefore dismissed; but without costs.