Magoric v. Little. place as those accustomed to it, and for use at all times when the ferry is in operation, whether by night or day. A release of damages for personal injuries sustained by being struck by a train on a railroad, obtained by the payment of $100, and not so fairly obtained as to be justly and equitably binding, set aside, and $4,000 awarded. (Before WHEELER, J., Southern District of New York, November 25th, 1885.) WHEELER, J. From the pleadings and proofs it appears that the defendant is receiver, and has control, of a ferry for passengers and teams from the foot of Liberty street in New York to the depot of the railroad in Jersey City, as well as of the railroad; that there are doors for teams to pass out of the ferry-house, from the ferry to the street, to the right and to the left of the doors for the exit of passengers, on the Jersey City side of the river, and that the passage to the right leads to the left to the street and to the right to the tracks of the railroad; that the passage to the right is left open for express wagons to go to the tracks, to reach express cars; that the plaintiff and his wife were riding, with her son, in his wagon, driven by him, and were intending to cross the Cortlandt street ferry, to go with him from New York to Bloomfield; that, by mistake, they took the defendant's ferry, and undertook to drive out of the ferry-house at Jersey City, at the passenger exit, and were directed by a watchman in charge to go out at the other door, to the right; that they drove out at the door to the right, as directed; that it was very dark out there, and there was no one to direct where to go, and they took the passage for express wagons, and followed that until they reached the tracks, and, in undertaking to cross them, were caught and held in a switch; that, at that time, a train was backing down, without warning, and struck them, injuring the plaintiff severely, and injuring the horse and wagon of the step-son, which were of the value of about $200, so that they were nearly or quite a total loss; that the step-son made claim for damages of the defendant, who caused the injury to him and to the plaintiff to be investigated; that the defendant denied legal liability for the damages, but finally Magoric v. Little. agreed to pay the step-son $200, for his damages, if he would procure the plaintiff to release his claim for damages for $100; that the step-son was very desirous of procuring his $200, and importuned the plaintiff, while he was weak in body and mind, and suffering from the injury, to accept the $100, and, by persuading him to believe that he would never get any more, and, perhaps, not anything, unless he took that, procured him to accept that and execute a very formal and full release of all claims; and that the plaintiff tendered back the $100, before bringing this suit, which is brought to set aside the release, and for a decree for the payment of the damages. The defendant insists that there was no legal liability, and relies upon the release if there was. It is stipulated, that, if the release is set aside, the liability of the defendant and the amount of the damages may be determined in this suit. The first question is as to the liability of the defendant. He was a common carrier of passengers and teams by the ferry. As such, he was bound to furnish safe approaches to, and passages from, the ferry-houses, from and to the streets, for such persons as would ordinarily use the ferry, as well strangers and those unfamiliar with the place as those accustomed to it, and for use at all times when the ferry was in operation, whether by night or by day. The plaintiff and his companions took the way out which they were directed to take, and which was provided for passengers to take when travelling by team. When they got outside, there was nothing to guide them to the street, and the way to the tracks was open, with nothing to warn them away from it as a place of danger. No precautions were taken to keep them away from there, and neither the usual means, nor others, were taken to warn them of the dangers of moving trains, as at crossings, to make it safe for them to be there. This defect in safe egress was one for which the defendant appears to be liable, as for a defect in the floor of the ferry-house itself, or in the way out of it; and upon the same ground on which railroad companies are liable for injuries caused by defective means of approach to and de VOL. XXIII.-26 Magoric v. Little. parture from their depots. (McDonald v. Chicago & N. W. R. R. Co., 26 Iowa, 124; s. c., 2 Redfield's Am. Railway Cases, 525, and 9 Am. Law Reg., N. S., 10; Beard v. Conn. & Pass. R. R. R. Co., 48 Vt., 101.) They were not in fault for being on the track, for they were led there by the directions to take the door leading in that direction, and by the open passageway to the tracks, for the express wagons. Upon these considerations, the plaintiff appears to have had a valid claim against the defendant for the damage done to him on that occasion, largely in excess of the $100 paid. The defendant caused the claim to be investigated, but had no negotiation with the plaintiff about settling it. The procurement of the release for $100 was left to the step-son, as a condition for the payment to him of his damages. The person who would naturally be interested for him was enlisted against him, and he was importuned and brought to decide while he was weak. Under these circumstances, the release does not appear to be so fairly obtained as to be justly and equitably binding. (1 Story's Eq., § 251.) The plaintiff appears, upon the whole case, to be entitled to a decree setting aside the release, and, on the stipulation, to a decree for the payment to him of his damages. Upon the evidence as to the effect of the injury upon his ability to labor, his health and capacity for enjoyment, his damages are found to be $4,000. Let a decree be entered for the orator, setting aside the release, and for the payment to him by the defendant, as receiver, of the sum of $4,000 damages for the injury, with costs. L. A. Fuller, for the plaintiff. De Forest & Weeks, for the defendant. The Pavonia. THE PAVONIA. By an established practice between two steam ferry-boats, the P. and the W., whose routes crossed, the P. had the right of way to her slip. The W. violated that practice, and attempted to cross the bows of the P. between her and her slip, and a collision ensued: Held, that the W. was in fault. She was also in fault in that, having signalled the P. of her intended course, she kept on it without receiving any response to the signal. It is the duty of a ferry-boat which has ample room to do so, to keep out of the way of another ferry-boat just about entering her slip, or in such proximity to it that she has made her final preparatory movements to enter it, when the circumstances require her to make a circuitous swing against the tide to reach it. The P. was in fault because she did not have a proper lookout, and because her pilot did not see the W. until too late to avoid a collision. The damages were divided. (Before WALLACE, J., Southern District of New York, December 4th, 1885.) THIS was a libel in rem, in Admiralty, filed in the District Court, to recover damages for a collision. That Court found both vessels in fault and divided the damages, (23 Fed. Rep., 204,) and both parties appealed. This Court found the following facts: "1. The collision took place on the North river, October 15th, 1883, at about 6.30 p. m., on a clear moonlight evening, between the ferry-boat Weehawken, owned by the libellant, and the ferry-boat Pavonia, owned by the claimant, by which injuries accrued to the Weehawken to the extent of more than $10,000. The tide was strong flood, running three miles an hour, and there was a heavy north-west wind. The collision occurred at a point about 200 feet off the southerly line and end of the lower division of the Pavonia's slip. 2. The Pavonia was making one of her regular trips from Jersey City, down and across the river, to her slip at Chambers street, New York City, and the Weehawken had left her slip at Barclay street, New York City, and was making one of The Pavonia. her regular trips, up and across the river, to Hoboken. The Pavonia's slip was 200 feet wide, divided into two sections. The lower division was occupied at the time by another ferryboat, the Delaware, and the Pavonia was making for the upper division. 3. The slips of the two vessels on the New York side were about 750 feet apart, the Weehawken's slip being the lower or southerly one. The slips on the New Jersey side were higher up the river, the slip of the Pavonia being below the slip of the Weehawken. The courses of the boats, on their usual trips, crossed each other. 4. It was the usage between the vessels, that the Pavonia should have the right of way to her slip, if she was swinging for it when the Weehawken should be leaving her slip, and that the Weehawken should keep out of her path. 5. It was also customary for the Pavonia, in making her slip on the New York side, with a strong flood tide, to go below it, not to any fixed point, but sufficiently far below, in view of the existing tide and wind, as to swing upward into her slip, with the drift of the tide; and this practice made it convenient and safe, at times, for the Weehawken, after leaving her slip, to go inside the Pavonia, and between her and her slip. If, however, the Pavonia was not well below her slip when commencing to swing for it, it was customary for the Weehawken to go outside. 6. On the occasion in question, owing to the wind, the Pavonia did not find it necessary to go below her slip, before commencing to swing for it, any considerable distance, and was not well below it. Just before she commenced to swing for her slip, the Weehawken started from her own slip. The vessels were then less than a half mile apart. Her pilot assumed the Pavonia would not begin to swing for her slip until opposite the Charleston pier, five hundred feet below the Chambers street slip, and, consequently, that there would be room for him to pass between the Pavonia and her slip. He, accordingly, headed his boat up the river, on a northerly course and proceeded on a line between one and two hundred |