Algier v. Steamer Maria

14 Cal. 167 | Cal. | 1859

Baldwin, J.

delivered the opinion of the Court—Cope, J. concurring.

Several points are made by the Appellant.

1. The first is, that a jury having tried a case involving the liability of the defendant for a similar cause of action depending upon the same general considerations, were incompetent to sit in this case against the objection of the defendant. The more specific grounds of objection to the panel were, that the defendant had been sued for negligence in several cases, the consequence of which negligence, as alleged, was the setting on fire and burning property, on or near the banks of the river, navigated by defendant.

We do not see how the Court could determine in advance of the development of the facts that the questions involved in this case were to be the same as in the case before tried by the jury. They might or might not have been. The opinion expressed or implied by the jury in their verdict, was merely hypothetical. It was merely the conclusion they drew from the facts in evidence, and the law given them in charge in the particular case before them. It would be absurd to say that, if he had rendered a verdict a year before upon facts before them going to establish, or which they supposed established, the liability of a steamer for acts of negligence, they could not now sit upon a case which might involve the same liability; and the question is not different merely because the first trial was immediately before the last. The jury could not possibly know what facts would be brought out in the case, nor what the argument of counsel would be, nor what the rulings of the Court. It does not follow that A, in his suit with B, will introduce the same proof or his1 counsel conduct the suit in the same way that a previous party has done in a case somewhat similar in its general features. If one plaintiff sues a Sheriff for not making the money on an execution, and the jury find for plaintiff, and if a dozen other plaintiffs should afterward sue for similar malfeasance, it would scarcely be contended that a juror was incompetent in every case after the first. We think the Court did not err in overruling the objection to the panel. ■ A conclusive reason is, that the mere suggestion by the counsel that the jury had just passed on a similar case, could not be noticed by the Court, as the Court could not possibly know that the caso then before it was, or was to be, similar to one just tried.

2. The objection to the jurors, individually, failed for the same cause; for though the juror knew his opinion in the case tried by him, he could not know that the next was, or was to be, like it; and the mere suggestion of counsel was not proof of this fact, either to Court or jury; and there seems to be no other showing.

3. The next error assigned is, that the jury failed to respond to a special direction given by the Court to them, viz : To say whether any carelessness or negligence had been proved as against the captain, or commander, or crew, of the steamer Maria, on the 25th June, 1858. The jury found a general verdict for the plaintiff, and assessed damages at four hundred dollars; they also found, “ that the steamer Maria had a spark-catcher, but not sufficient to prevent the sparks or fire from communicating the same to the shore and endangering the property on the banks of the stream.”

Defendant did not object to this verdict when it was returned, because it was not responsive to the directions of the Court; but the record merely states that the defendants objected to the entry of the verdict, (when not stated,) but they did not ask that the jury be sent back to give a more specific and direct response to the issue presented to them.

We see no force in the objection urged to the verdict on this score. The jury had found for the plaintiff, and assessed his •damages; they found, also, that the spark-catcher was not suffi.cient for its purpose. The only question which was mooted in ¡the case, was the general question of negligence, and this question was made to depend, by the facts of the case, on the sufficiency of this spark-catcher to prevent the fire escaping from ' the boat consuming the property on the bank of the river. Taking the two findings together—that the plaintiff was entitled to recover, and that the spark-catcher was not sufficient to prevent the fire from communicating with the shore, and endangering the property—in the absence of a specific objection made upon the return of the verdict to it upon the ground that it did not directly and unequivocally respond to the question oi negligence, the objection of the defendant cannot be sustained. The general verdict for the plaintiff, prima facie, was enough for him, and involved a finding of negligence; and if the form of the other finding was objectionable to the defendant, its counsel should have objected to it at the time, so that any defect in it might have been remedied. The jury evidently designed to declare by their verdict that there was negligence; and we are not at all satisfied that in the finding they made, apart from the general verdict, they have not substantially found the fact oí negligence; for under the decision in Gerke v. California Nav. Co. (9 Cal.) it is hard to see the difference between having no spark-catcher at all—which is there held to be negligence—and having one not sufficient to prevent the fire from communicating with the shore, and endangering the property on the banks of the stream.

4. The next point is that the verdict is contrary to evidence. But there was some proof of negligence, and we cannot review the verdict in such cases.

Several other points are made, but we think there is nothing in them.

Judgment affirmed.