American Steamship Co. v. Bryan

83 Pa. 446 | Pa. | 1877

Mr. Justice Sharswood

delivered the opinion of the court, March 5th 1877.

The learned judge below substantially affirmed the points made by the plaintiffs in error — that they were not responsible as common carriers or innkeepers, but that they must answer for negligence as other bailees for hire. To this ruling certainly the plaintiffs could take no just exception. He left the case to the jury, reserving the question whether there was any evidence of negligence. The jury found that there was negligence, and the court in banc — after the death of the learned judge before whom the cause had been tried — entered judgment upon the verdict.

Were there any facts in evidence tending to show want of ordinary care which, in the judgment of any reasonable person, might be so considered ? The question is not whether the court considers the facts to amount to negligence — what they would have decided sitting as jurymen — for that would entirely usurp ^he province of the jury. Whether there is any evidence is for the court; whether and to what extent the witnesses are to be believed, and whether the circumstances are sufficient to satisfy the mind in finding the fact in issue, is for the jury.

The jury in this case might very well conclude that the theft had been perpetrated by an employee of the company. Valises are not articles which can easily be secreted by a passenger, or thrown overboard after they have been rifled, without observation. It may very easily bo accomplished by a servant on board acquainted with all the holes and corners of the vessel. The baggage of the passengers is taken on to the wharf immediately on- arrival, and is open and subject to inspection. The servants remain on board, and can watch their opportunity to slip such things ashore or throw them overboard. One of the passengers on this occasion was suspected, arrested and detained a considerable time and then discharged, as no evidence could be produced against him.

A watch was kept during the night in the saloon; but was it of such a character as to amount to the ordinary diligence which the company owed to their passengers ? This surely was a question for the jury. It was not a watchman, who by taking his natural rest during the day might be expected to be watchful at night. The stewards or waiters on board took their turns at this duty. As the means of securing their vigilance, they were required every hour to report to the officer on deck, and of course for this purpose had to leave their post. They might be expected to take some time to do this, to loiter on their way, to stop and have a few words with the officer about the weather and the speed of the vessel — and on the morning the larceny was committed it appeared that the steward ,on watch had stopped on his way at the cook’s galley and drunk a hup of coffee. There was ample time in the interval, as the fact showed, for some one to enter the state rooms of the defendant and other passengers and carry off several valises. Was this ordinary and proper diligence? Could not some other mode have been adopted of watching the watchman, than this which might leave the saloon entirely unguarded at considerable intervals ? In many of our public institutions a very simple electrical machine registers the rounds of the watchman during the night at the appointed times. We do not say that every passenger ship should have and use such a register, but we do say it was for 'the jury to determine whether this apparent deficiency in the mode of watching the saloon might not have been remedied. Even as a precaution against fire they might well argue that the continuity of the watch was essential. A fire might begin from accident or carelessness in one of the state-rooms, and. make such headway in five minutes before discovered that the ship would be imperilled. On the whole we are of opinion that there was evidence to go to the jury, and that the court committed no error in entering judgment in favor of the plaintiff below on the reserved point.

Judgment affirmed.

Paxson, J., filed a dissenting opinion, in which Agnew, C. J., concurred.