1918.] Points of counsel. [225 N. Y.] 3. It was improper to instruct the jury that they must add interest to the amount, if any, which they should award as damages for the injury to plaintiff's boat. Ryan v. Empire Engineering Corp., 172 App. Div. 940, reversed. (Argued November 18, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 25, 1916, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. Alfred L. Becker and Frank A. Abbott for appellant. The charge of the court erroneously held the defendant to a duty as matter of law to maintain a draft of seven feet of water in the uncompleted new channel. There was not even a question of fact as to such duty, and the plaintiff proved no negligence of defendant in this respect. (Atlee v. Steam Packet Co., 21 Wall. 389; Robinson v. Chamberlain, 34 N. Y. 389; Johnson v. Belden, 47 N. Y. 130; Adsit v. Brady, 4 Hill, 631; French v. Donaldson, 57 N. Y. 496; Hicks v. Dorn, 42 N. Y. 47; Van Alstine v. Belden, 41 App. Div. 123; St. Peter v. Dennison, 58 N. Y. 416; Piercy v. Averill, 37 Hun, 360; Dunn v. Empire Engineering Corp., 147 App. Div. 237; 210 N. Y. 599.) The defendant was not negligent in failing to provide buoys or lights to mark the channel. Reciprocally, the plaintiff was chargeable with contributory negligence as a matter of law, or at least it was a question of fact. The effect of the charge, however, was substantially to instruct the jury as a matter of law that the pilot had a right to go outside of the channel of the old Erie canal. This was error. (Atlee v. Steam Packet Co., 21 Wall. 389; Davidson S. S. Co. v. United States, 205 U. S. 187; Casement v. Brown, 148 U. S. 615; The Margaret, 94 U. S. 494; The Florence, 88 Fed. [225 N. Y.] Points of counsel. [Dec., Rep. 302; V. O. Towing Co. v. Wilson, 63 Fed. Rep. 626; Harrison v. Hughes, 125 Fed. Rep. 860.) The court improperly charged that proof that the vessel ran upon an obstruction in the canal was sufficient to establish the defendant's negligence. (Wandell v. Murray, 239 Fed. Rep. 847; Huntley v. Empire Engineering Corporation, 211 Fed. Rep. 959; Otts v. Ludingston's Sons, 229 Fed. Rep. 538; 229 Fed. Rep. 454; Morris v. L. S. & M. S. Ry. Co., 148 N. Y. 182; Cadwell v. Arnheim, 152 N. Y. 182; Rupert v. Brooklyn Heights R. R. Co., 154 N. Y. 94; Travell v. Bannerman, 174 N. Y. 52.) The court erred in its refusal to admit evidence showing a prior statement by the witness Gillson, contrary to his evidence on the trial. (Reed v. McCord, 160 N. Y. 330.) The court erred in charging the jury, as matter of law, that the plaintiff was entitled to interest on the amount recoverable for the value of the boat during the time she was out of commission. (Walrath v. Redfern, 18 N. Y. 457; Black v. Camden & Amboy R. Co., 45 Barb. 40.) John B. Richards for respondent. The fact that the obstruction upon which the Hudson stranded was outside of the navigable channel of the Erie canal as it existed prior to the work of improvement, did not relieve the defendant from the result of its negligence in creating such obstruction and leaving it unmarked and unbuoyed. (Robinson v. Chamberlain, 34 N. Y. 389; Johnson v. Belden, 47 N. Y. 130; Adsit v. Brady, 4 Hill, 631; French v. Donaldson, 57 N. Y. 496; Hicks v. Dorn, 42 N. Y. 47; Van Alstine v. Belden, 41 App. Div. 123; St. Peter v. Dennison, 58 N. Y. 416; Piercy v. Averill, 37 Hun, 360; Dunn v. Empire Engineering Corp., 147 App. Div. 237; 210 N. Y. 73; R. S. Towing Co. v. Snare & Triest Co., 194 Fed. Rep. 672.) The evidence amply supports the finding of the jury that the defendant was negligent, and there is no failure of proof in that regard. (Huntley 1918.] Opinion, per HISCOCK, Ch. J. [225 N. Y.] v. Empire Engineering Corp., 211 Fed. Rep. 961; Griffin v. Manice, 166 N. Y. 188; Marceau v. Rutland R. R. Co., 211 N. Y. 203; Sweeney v. Edison Electric Illuminating Co., 158 App. Div. 449; Robinson v. Consolidated Gas Co., 194 N. Y. 37; McNulty v. Ludwig Co., 153 App. Div. 206.) It was not error to exclude the testimony of witness William B. Gallagher with reference to an alleged conversation with Captain Gillson. (Reed v. McCord, 160 N. Y. 330; White v. Miller, 71 N. Y. 118; Happy v. Mosher, 48 N. Y. 313; Kay v. Metropolitan St. Ry. Co., 163 N. Y. 447; Greenl. on Ev. [13th ed.] 141, § 113.) The question of plaintiff's contributory negligence was correctly submitted to the jury by the trial court. (Casement v. Brown, 148 U. S. 615; Blanchard v. W. U. Tel. Co., 60 N. Y. 510.) The jury did not include interest on the damages to the hull or on damages allowed for loss of use, and the plaintiff alone suffered by reason thereof, since there was no error in the charge that the plaintiff was entitled to interest on such damages. (Eddy v. Lafayette, 49 Fed. Rep. 808; Schnede v. Zenith S. S. Co., 216 Fed. Rep. 566; 244 U. S. 246; The J. C. Gilchrist, 173 Fed. Rep. 666; Spencer on Marine Collisions, § 206; Roscoe on Damages in Maritime Collisions, 52; The Bulgaria, 83 Fed. Rep. 312; The American, 11 Blatch. 485; Fed. Cas. 285; The Rickmers, 142 Fed. Rep. 305, 314.) HISCOCK, Ch. J. The defendant had a contract for enlarging the Erie canal near Spencerport to the dimensions required for the barge canal and at the time and place of the accident herein involved had partially completed its contract. It made excavations" in the wet," that is, underneath the surface of water. In the course of its work and at the time of the accident the bank on the towpath side of the canal had been changed and set back somewhat and the excavation upon the other side had been carried a considerable distance beyond the line [225 N. Y.] Opinion, per HISCOCK, Ch. J. [Dec., of the original berme bank, and so far as surface indications were concerned there was a waterway for travel much wider than that comprised within the lines of the original canal. As a matter of fact for a considerable distance beyond the original channel on the berme side of the canal the excavation had been made to a depth which rendered passage for a canal boat perfectly safe, with the exception that at one point estimated from about thirty to fifty-five feet beyond the original channel there had been left a strip of bottom ten or fifteen feet long, more or less studded with boulders at its top, and coming so near to the surface of the water that an ordinary canal boat would strike thereon. * Under its contract defendant was required to so conduct its work" as not to interfere with the navigation of the present (old) canal between the 15th day of May and the 15th day of November of each year," and it was required to take "such precautionary measures as may be necessary to guard against the interruption or injury to navigation.' At night in the month of August plaintiff's canal boat, loaded with grain, was being pushed by a steam-propelled boat through the canal in the locality in question, under the guidance of an experienced and qualified pilot. As the latter steered to the berme side in order to pass other boats coming from the opposite direction, plaintiff's boat was shoved upon the strip of bottom above described with the result that its bottom was broken and its cargo substantially damaged. As already indicated, there is some difference in testimony as to the exact location of this accident as compared with the original line of the channel on the berme side, but as I understand the evidence it was not less than thirty nor more than fiftyfive feet distant therefrom and was in about the center of the waterway as it then appeared, taking into account the enlarged portion of the canal created by defendant's 1918.] Opinion, per НISCOCK, Ch. J. [225 N. Y.] excavations, and there was nothing in the way of buoys or lights to mark the original lines of the canal or the location of this particular strip of bottom which was dangerous to navigation. Plaintiff recovered a verdict because of defendant's alleged negligence, and because of the latter's claims of error on the trial we are presented with the questions what were the rights of the respective parties and where was the fault, if any, which led to the accident. In attempting to define these rights the trial court charged, as outlining those of the plaintiff, that "The navigators of the Hudson had the right to assume, in the absence of buoys, lights or other indications, that the waterway was safe, certainly to a reasonable extent beyond the exact lines of the old canal." And it further charged as defining the obligations and liabilities of the defendant that if the boat struck the obstruction which has been referred to and that this was what caused it to sink, “then the plaintiff has made out his case so far as the defendant's negligence is concerned." And further, as accentuating this view, the court refused to charge "that the defendant was not bound to keep any portion of the work under improvement in condition for navigation, which was not included within the navigable portion of the Erie Canal," and also that if the place where the boat sank "was merely a portion of the work under improvement, where the excavation was not complete, negligence cannot be imputed to the defendant solely for a failure to remove the materials therefrom to a depth sufficient for navigation." Thus it was in effect held as matter of law that the plaintiff's boat was rightfully and without negligence where it was although a substantial distance beyond the lines of the Erie canal whereon it was traveling and that defendant as matter of law was guilty of negligence because in the course of and while still engaged in making |