98 P. 622 | Idaho | 1908
Lead Opinion
This is an appeal from a judgment and an order denying a motion for a new trial. The plaintiffs recovered judgment in the trial court against the defendant transportation company for $1,701.50, as damages alleged to have been incurred by reason of the company’-s steamboat 41 Idaho,” colliding with and sinking the plaintiffs’ combined steamboat and pile-driver. The plaintiffs specially pleaded the items of damages claimed and the jury returned a verdict for the full sum demanded by the complaint. The items of damages claimed are as follows:
Chattels and effects lost and destroyed by the sinking of the boat...................$381.65
Expenses incurred-and paid out for raising the boat .................. 544.85
Loss of profits and earnings of boat and pile-driver for 27 days while out of use and being raised and repaired, at $25 per day ................................ 675.00
Special injury and damage to boiler caused by collision ......................... 100.00
The answer in the case put in issue all the material allegations of the complaint. It would be a useless task to discuss and consider the assignments of error, 65 in number, separately and in detail. We shall therefore consider only
There is nothing in the contention that the complaint fails to state a cause of action and is particularly defective in not properly charging negligence on the part of the defendant and its agents. The complaint stated the ultimate facts necessary to be pleaded and is sufficiently specific to enable defendant to intelligently answer and make a complete defense to the action, if it had a defense. (McLean v. City of Lewiston, 8 Ida. 472, 69 Pac. 478; United States Mail Line v. McCracken, 17 Ky. Law Rep. 1111, 33 S. W. 82.)
It is contended here that the evidence is insufficient to support the verdict. Appellant urges that there was an utter failure on the part of the plaintiffs to show negligence in running the steamer “Idaho,” and that whatever negligence appears in the ease is the negligence of the plaintiffs in mooring and anchoring their steamboat and pile-driver and not having a light out at the time the collision took place. ¥e have examined this evidence with considerable care, and are satisfied that it was sufficient to justify the jury in arriving at the conclusion that the pilot on the “Idaho” was negligent in handling his boat and in running down the appellant’s vessel, and that the transportation company was guilty of negligence in the selection of its pilot and was chargeable with his acts and conduct. It would be of no value or consequence to review the evidence here at any length. The general outline of the occurrence is briefly as follows:
On November 12, 1906, the respondents’ combination steamboat and pile-driver was tied up at her usual landing place near the shore at Coeur d’Alene City, and, so far as we can discover from the record, inside of the line of usual and customary navigation by other vessels. It had been lying at the same place for ten or eleven days; it was fastened or tied with ropes to the dock; it did not display any light on board the night of the collision and the evidence does not disclose that it was in the habit of displaying a light when moored at this dock, nor does it show that any such custom prevailed in the Ooeur d’Alene City harbor. On the evening of this same
Considerable evidence was introduced by experts to the effect that the pilot could have maneuvered the boat in a different manner from what he did, and thereby have avoided the accident, and also to the effect that there was no occasion for backing at all, and by others showing that he might have backed directly out to open sea instead of in the direction of the pile-driver. To our minds, however, that class of evidence is of but little consequence. The test of negligence in such a case is not that the pilot might have done any one of a number of other things at the time and under the circumstances, but rather was he careless and negligent in doing the particular thing he did at the time and under the circumstances confronting him. This rule is aptly stated by the supreme court of the United States in case of The Nevada, 106 U. S. 154, 1 Sup. Ct. 234, 27 L. ed. 149, as follows:
“The event is always a great teacher. They might have stayed out in the rivér and not entered the slip; or, having entered, they might have gone to the bulkhead, and stayed*453 there until ‘The Nevada’ left. But these possibilities are not the criterion by which they are to be judged. The question is: Did they do all that reasonable prudence required them to do under the circumstances 1 And this question, we think, must be answered in the affirmative.”
After an event has transpired or an accident occurred, it is always easy enough for persons to sit back in cool deliberation, removed from the surrounding dangers, excitement and circumstances of the occurrence and tell how a party might and should have acted in order to avoid danger or difficulty. But it is a very different thing when called upon to act under the excitement, dangers and difficulties of the occasion. The test is not what he might have done, but whether what he did in fact do was such as a reasonable man might do under the same conditions and circumstances. The evidence in this case was sufficient, however, to justify the jury in concluding that this pilot was either incompetent for the duties of a pilot or else was careless and negligent in handling the boat, in either of which events the company would be liable for his acts and conduct.
In attempting to establish the negligence of the defendant, counsel for plaintiffs on cross-examination asked the witness Carl Falk, who was the pilot on the “Idaho,” whether or not on the second night after the accident, in the Lake View saloon in Coeur d’Alene City, in the presence of William Farr and Ben Woods, he did not state to Farr in speaking of the accident as follows: “I did not know anything about running the ‘Idaho’ and I told them so, and they forced me into it.” Counsel for defendant objected to this question and their objection was overruled and they assign the action of the court as error. Plaintiffs also asked this same witness on cross-examination if he did not make a similar statement to plaintiff, Ernest Carscallen, the next morning after the accident. Falk denied making such statement either in the Lake View saloon or to the plaintiff Carscallen. Plaintiffs thereafter called Woods and Carscallen, each of whom testified that defendant’s pilot, Falk, had made the statements that had been embodied in the questions propounded
We find no reversible error in any of the other rulings of the court on the admission or rejection of evidence. We think, however, that the objections of the appellant were well taken to the introduction of the line of evidence produced by plaintiffs to the effect that the “Idaho” could have been safely docked in her slip by various other maneuvers than that taken by the pilot. As above stated, it is not a question as to whether this could have been done safely in any other manner, but the real question is: Was the pilot negligent in pursuing the particular course he did pursue? This evidence, however, was not of such a nature as to afford grounds of reversal of the judgment.
Appellant assigns as error the action of the court in giving a number of instructions and also refusing certain instructions requested by defendant. Appellant contended all the way through the trial, and so contends here, that the plaintiffs were guilty of contributory negligence in not displaying a light on their boat and pile-driver on the night of this collision. The court instructed the jury that there is no
If a vessel is at anchor in a harbor where there are a great many steamboats, vessels and crafts, and at such a place that the vessels coming and going would be likely to collide with her unless she displayed a signal, then it would be negligence not to do so. If, on the other hand, a vessel is moored in a place where but few vessels are plying, and at a point where other vessels are not likely to be coming and going, and out of the way of incoming and outgoing vessels, then there would be no negligence in not displaying a light. (Ure v. Coffman,
Appellant complains of the action of the court in giving plaintiffs’ instruction No. 3 on the measure of damages to be awarded in the event they found in favor of the plaintiffs. The particular cause of complaint is found in that part of the instruction wherein the court told the jury that, among other items of damages, they might award plaintiffs such amount as they might be reasonably satisfied from the evidence the plaintiffs would have earned by the use of their combined pile-driver and steamboat during the period in which the boat was being raised and undergoing repairs, and being made ready for service as it had been prior to the collision. Appellant contends that the measure of damages for the collision is the reasonable cost of raising and repairing the boat and hiring another boat during the time of making repairs, not exceeding at any time the value of the boat, and in support of this proposition cites: The Baltimore, 75 U. S. 377, 19 L. ed. 463; Williamson v. Barrett, 13 How. 101, 14 L. ed. 68; The Granite State, 70 U. S. 310, 18 L. ed. 179.
At first blush one would conclude that there is a great diversity of opinion as to the measure of damages in such cases, but a careful consideration of the cases and the particular statutes, ordinances or regulations to which they are referable and under which they were decided, as well as the peculiar facts of each case, tends very greatly to reconcile
“The difficulty is in determining when the vessel has lost profits and the amount thereof. The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market. Obviously, however, this criterion cannot be often applied, as it is only in the larger ports that there can be said to be a market price for the use of vessels, particularly if there be any peculiarity in their construction which limits their employment to a single purpose.
*458 “In the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is the proper basis for estimating damages for detention, and the books of the owner showing her earnings about the time of her collision are competent evidence of her probable earnings during the time of her detention. ’ ’
See, also, The North Star, 151 Fed. 177, 88 C. C. A. 536; The Sanford, 37 Fed. 151.
In this case the plaintiffs proved that they had employment at the time of the collision which netted them about $40 per day, and it was stated by one of the plaintiffs that his books would show such a profit. It was also shown that they entered immediately upon that work after the repair of the boat and continued until the bay in which they were working froze up. No attempt was made by the defendant to show either that the plaintiffs could not net $40, per day with their boat and pile-driver, or that they could not have procured work, nor did the defendant attempt to show that any other boat could have been hired for this work or the rental value of such a boat. The plaintiffs had pleaded that they could earn $25 per day and the court limited their right of recovery to that sum. Under these facts and circumstances, we are satisfied that the measurement of damages adopted in this case was correct.
Appellant also assigns as error the refusal of the court to give a number of instructions requested by defendant; some of them correctly state the law while others do not. Those correctly stating the law were given. The incorrect ones were properly rejected. The particular complaint made by appellant in this respect is that the court did not go into the question of contributory negligence as fully in his instructions as the defendant requested. There are two objections to the instructions requested by the defendant on contributory negligence; one is that they do not correctly state the law, and the second is that they are argumentative
We find no error that would require a reversal of the judgment. Upon the whole record it appears to us that the judgment in this case is just and equitable, and is supported by a great preponderance of the evidence. The judgment will be affirmed, and it is so ordered. Costs are awarded in favor of respondents.
Rehearing
ON PETITION FOR REHEARING.
The appellant files a petition for rehearing in this case upon the following grounds: First, appellant contends that this court did not consider or pass upon the following instruction:
“The jury is instructed that there is no law in force in this state requiring steamboats, vessels or other crafts such as the said combination pile-driver and steamboat of the plaintiffs while moored or tied up at their usual mooring*460 place or on the shore or dock of any'lake or river to display any light, or other signals, nor was there any such law in force in this state on the 12th day of November, 1906.”
This court did not consider this instruction in the opinion, and held that the same was not erroneous, and counsel in the petition for rehearing does not claim the instruction was erroneous, but argues that by the giving of this instruction the jury were told, in effect, that the failure to display a light or other signal was not to be considered by the jury in determining whether or not the plaintiff was guilty of contributory negligence. This instruction does not so state. It merely advises the jury that there was no law in this state at the time of the accident requiring steamboats or combination pile-drivers, moored at a place or on the shore or dock of a lake, to display any light or other signal, but the jury were not advised by this instruction that the failure to display a light was a matter they could not consider in determining whether the plaintiff was guilty of contributory negligence. The statement in this instruction in no way misled the jury. It simply advised them that the failure to display a light was not per se negligence. The instruction itself is not erroneous, and did not withdraw from the jury the right to consider whether the plaintiff was guilty of contributory negligence in not displaying a light. Whether the failure to display a light was negligence was a question of fact, left to the jury.
It is next complained that the court erred in its conclusion as to the rule of damages. This question is fully considered by this court in the original opinion. This court announced the rule that “in an action for damages caused by a collision to allow the owners of the injured vessel to recover the per diem shown to have been its net earnings for the number of days the vessel was being raised and was undergoing repairs.” In other words, where an accident occurs and it requires time.to raise the vessel and repair it and put it in the condition in which it was before the accident, the owner may recover as damages the earning capacity less expenses during
It is next urged that this court has failed to consider Instruction No. 10, requested by the appellant, as follows:
“The Court instructs the jury that although the jury may believe from the evidence that the defendant’s servants were guilty of negligence which contributed to the injury in question, still if the jury further find from the evidence that the plaintiffs were also guilty of negligence which contributed to the injury, then the plaintiffs cannot recover in this suit.”
This instruction was considered by this court in connection with the other instructions, especially the instruction in which the court told the jury “they must find that the collision occurred without any fault on the part of plaintiffs, or either of them, in order for plaintiffs to recover,” and this court held that the instructions, given by the court in effect covered the request made by the defendant, and that it was not error in refusing to give the instruction requested. We understand the rule to be, that the trial court does not err in refusing to give an instruction, although it states the law correctly, where the same statement of the law in effect is given to the jury in other instructions. Appellant also contends that this court overlooked the evidence which tended to prove the value of the articles lost by the sinking of the pile-driver, and that the evidence offered was not sufficient to sustain the verdict of the jury. This argument is based upon the fact that the complaint alleges that the plaintiffs lost, by the sinking of the pile-driver, personal property of the value of $381.65, while the evidence shows the value of such property to be only $321.95. An examination of the evidence discloses that the plaintiff was unable to enumerate separately many of the articles lost or to give their value when testifying as to his loss by the sinking of the pile-driver, but the witness did testify that he had a memorandum of the articles lost and that the value of the same was $381 and some cents. This, in connection with the value of the particular items given by the witness and his statement that some of the items
We have given further consideration to this ease upon the petition for rehearing and are satisfied with the original opinion rendered. The petition for a rehearing is denied.
