26 Del. 428 | Del. Super. Ct. | 1912
charging the jury:
Gentlemen of the jury:—This is an action on the case, instituted by George A. Bowen in his lifetime, and prosecuted by Emma L. Bowen, his administratrix, since his decease, to recover damages for personal injuries alleged to have been inflicted upon him by the Baltimore and Philadelphia Steamboat Company, the defendant corporation.
In support of this action the plaintiff imputes to the defendant various acts of negligence, and charges in substance that at the time of the injuries complained of the defendant company was engaged in operating a steamboat line between the City of Philadelphia and the City of Baltimore by a route that required its boats to enter the locks and pass through the waterway of the Chesapeake and Delaware Canal Company; that on the night of the twenty-third of December, A. D. 1910, the Lord Baltimore, one of the steamboats admitted to have been operated by the defendant company, while en route from Philadelphia to Baltimore, appeared off the locks of the eastern terminus of the canal at Delaware City, and signaled its purpose to enter; that in response to that signal, George A. Bowen, the plaintiff’s intestate, and William J. Wingate, the two locktenders then on duty, proceeded to make ready the locks for the steamer by opening the
It is further testified that these two gates are opened and closed by two locktenders, each tender operating one gate, by placing the hollow of his back against the boom and pushing the boom with his back, by the aid of bracing himself against cleats upon a walkway over which the boom sweeps.
It is claimed by Bowen’s administratrix that at the time Bowen was performing his duty as a locktender in opening the gate in his charge in' the manner and for the purpose indicated, and before the gates were fully opened and the locks made ready, the steamer Lord Baltimore was seen by Wingate, the head lock-tender, to be approaching the locks under a dangerous headway, that Wingate called aloud to the steamer or to its pilot to “go back on her” and gave to the steamer or her pilot a warning of the impending danger in time sufficient to have averted the subsequent collision, had it been heeded. It is further charged that in disregard of this warning and in violation of a rule adopted and long established by the canal and the defendant companies, to the effect that its steamers should approach the locks for the purpose of entering them only upon receiving from the locks a signal given upon a bell or by a call from the locktender, indicating the locks to be ready and the way clear, the Lord Baltimore continued on its course towards the locks which were visible in the clear winter night and struck the gate that was being operated by Bowen, with such force as to do him the injury for which he in his lifetime brought this action.
The acts of negligence specifically imputed to the defendant company are, first, that it so carelessly ran or operated the Lord Baltimore, or so carelessly omitted to use proper caution in its operation, that in endeavoring to effect an entrance into the
To these specific charges of negligence the defendant replies that it is not guilty and for defense maintains, that the night of the twenty-third of December, 1910, was dark, that in descending the river and in approaching Delaware City the Lord Baltimore encountered ice and passed through rain, and that upon her arrival at Delaware City it was dark and misty; that pursuant to a code of signals established by the canal company and the defendant company, the captain blew three blasts of the whistle at the usual place about a quarter of a mile from the locks, slowed down; that upon approaching the locks and before the steamer had reached the V where steamers tie up when they are required to wait for admittance into the locks, a call was heard to “come ahead”; that this call was one of the customary and recognized signals to enter the locks; that the call was heard by the watch, on the main deck, who transmitted it to the second in command on the saloon deck, who in turn repeated it to the captain in the pilot house; that the steamer responded to this call by one blast of the whistle and proceeded toward the locks at a slow rate of speed; that when a short distance from the locks, the gates were seen by one of the officers to be but partially opened, whereupon
,[1] From this general statement of the case it appears that the issue, which against the motion of the defendant we deem proper to submit to you for your determination, is one of negligence. Negligence is a want of ordinary care; that is, such care as a reasonably prudent and careful person would exercise under similar circumstances. Negligence is never presumed. It must be proved and the burden of proving it rests upon the party alleging it. It may arise from overt acts or from the failure to perform a duty.
. [2] It is the duty of companies operating steamboats, to provide skillful and careful servants to navigate their boats, competent in every respect for the posts to which they are appointed in their service, and it is their duty to see that their servants not only possess skill and a capacity for care, but to see that they apply these qualities when the occasion requires them. To this end and in this respect the law holds the employer responsible for its employee’s negligence, as in this case the negligence of the captain or other officer or servant of the Lord Baltimore, if found, becomes the negligence of the defendant company.
[3] The care contemplated by the law in this regard is reasonable care, and reasonable care, when applied to the control and management of a steamboat in motion, 'imports all the care which the particular circumstances of the place and occasion reasonably require, and these will be increased or diminished according as the liability of danger and accident and injury to others is increased or diminished in the movement and management of such a steamboat. Duggan v. N. J. & W. Ferry Co., 7 Penn. 318, 330, 76 Atl. 636.
[4] In considering whether or not the servants of the defendant in charge of the boat at the time of the accident used all the care which the particular circumstances of the place and occasion
It is for the jury to determine from the evidence whether the injuries complained of were the result of the collision, and, if so, whether the collision was due to negligence on the part of the defendant company in the movement and management of its steamboat at the time of the accident, without the fault or negligence of the plaintiff’s decedent, or whether the injury resulted to the plaintiff’s decedent by his own fault or negligence. The gist of this action being negligence, it is for you to determine who committed the negligence, if any, from which the injuries resulted.
[5] If the injuries to the decedent were not the result of the negligence of the defendant company or of its servant or servants, the plaintiff cannot recover. The burden of proving negligence is upon the plaintiff, and there is no presumption of negligence on the part of the defendant from the single fact that the decedent was injured by being struck as indicated.
[6] Even though the defendant company may have been negligent in operating its boat, yet, if negligence of the decedent contributed to and was the proximate cause of his injuries, your verdict should be for the defendant, as Bowen would be guilty of contributory negligence, and the law will not attempt in such case to measure the proportion of blame or negligence to be attributed to each party. Lynch’s Ex. v. W. C. Ry. Co., 7 Penn. 195, 78 Atl. 636.
[7] The degree of care and caution required of one to avoid being injured is at least no greater than that which is required of
If, in view of the circumstances surrounding the accident from which the injuries resulted, you believe that Bowen, in continuing to open the gate, acted as a reasonably prudent man would act under all those circumstances, and thereby received the injury complained of, he was not guilty of contributory negligence, and is not thereby prevented from recovering.
If you believe Bowen was confronted with an emergency, occasioned not by his act, but by the negligent act of the defendant’s servants, and was called upon to act suddenly without time for deliberation or with but little time for reflection, he would not be required to exercise the same degree of care and caution as under ordinary circumstances. If, therefore, in this case, having regard to the entire situation, and the circumstances surrounding it, of which Bowen knew or of which Bowen could properly and reasonably be charged with knowledge, he acted as a reasonably prudent man would act under all like circumstances, and thereby received the injuries complained of, he cannot be held to have contributed to them and will not thereby be prevented from recovering.
The plaintiff must prove his case and show the injuries to have been caused in the manner declared by him in his pleadings. If you find that the defendant committed no acts of negligence that occasioned the injuries or if you find that the defendant was guilty of some negligence yet also find that the decedent by acts of negli
[8] If you find that a warning was given by Wingate for the boat to go back or a warning of the approach of the boat was made by the single blast of the whistle, and that Bowen heard either of these warnings and understood and comprehended their import and meaning, it was Bowen’s duty to heed them as a prudent man under like circumstances and with like knowledge would heed them, and if he failed so to do and injury resulted, he would be guilty of contributory negligence and cannot recover.
[9] If the jury find that the locktender Wingate or some one else in authority on behalf of the Chesapeake and Delaware Canal Company did give the signal to the defendant’s steamboat to come ahead and that the defendant’s steamboat in consequence of that signal did come ahead at a proper rate of speed and in a proper manner and with proper caution, and that a warning given thereafter to go back because the gates were not open was given too late to reverse and that in consequence thereof the plaintiff’s intestate was injured, the negligence, if any, would have been that of the Chesapeake and Delaware Canal Company, or of its servants, and not that of the defendant, and your verdict should be for the defendant.
[10] If you believe that there was an understanding between the defendant and the Chesapeake and Delaware Canal Company, the employer of the plaintiff’s decedent, which was known to him, to the effect that the steamboats of the defendant company in approaching the outer entrance to the lock, should give timely warning of such approach by sounding a steam whistle, and that the steamboat should not attempt to enter the lock after having given such warning until such warning had been acknowledged by
[11] With respect to the injuries from which the decedent suffered, the important thing for you to determine is whether they were injuries inflicted by the defendant’s servants. In this connection it is not necessary for the plaintiff to prove that Bowen’s death was caused by mitral stenosis, occasioned by the defendant’s negligence, it being sufficient for the plaintiff to prove that the suffering for which compensation is sought by this suit was from injuries inflicted by the defendant; but if you should find that Bowen’s suffering and death were in fact entirely caused by the disease of mitral stenosis which disease was not caused by the
[12] If you become satisfied from the evidence that the injuries complained of by the plaintiff were occasioned by the negligence of the defendant company, or of its servants or agents, or any of them as declared, your verdict should be for the plaintiff, and you should assess the damages at such sum as you deem proper and right under the circumstances, and in fixing the amount thereof, you should consider such damages as have been proved by reason of loss of wages from the twenty-third day of December, A. D. 1910, to the fourth day of July, A. D. 1912, and such other sum or sums of money as would have been earned by the plaintiff’s intestate during that time; all his expenses for medicine and medical attendance which he has paid, and traveling expenses incident thereto; and also such sum as you deem adequate and proper by reason of his physical pain and mental suffering, as the result of his injuries. Quinn v. Johnson Forge Co., 9 Houst. 338, 347, 32 Atl. 858.
Should your verdict be for the plaintiff you cannqt include compensation for Bowen’s death in your assessment of damages. By force of the law and the nature of this action the decedent’s administratrix cannot recover for his death. Quinn v. Johnson Forge Co., 9 Houst. 338, 347, 32 Atl. 858.
Verdict for plaintiff.