201 F. 70 | 7th Cir. | 1912
(after stating the facts as above). The main question is whether plaintiff was injured by the rolling of the steamer and her own seasickness, over which defendant had no control, or by the negligence of the cabin watchman in moving her from a place of'safety into an unsafe position. Counsel for defendant urges that one place was as safe as the other, that no other person fell, that no reasonable person would anticipate an injury from the placing of plaintiff in a comfortable and proper chair near the center of the stateroom, even in her condition of sickness, and that the highest degree of care consistent with the practical operation of the vessel was exercised. On the other hand, plaintiff’s position is that it was a question of fact, properly submitted to the jury, whether it was not negligence for the watchman to take her, for the convenience of another passenger, from a position where her chair was against the cabin wall, flanked on both sides by other occupied chairs, and protected in front by her mother’s chair, and place her in a comparatively unprotected place upon a slippery floor, especially in view of her extreme helplessness; that if she had not been moved at all no liability could have resulted, but if defendant assumed to change her position it was its duty to put her in a place equally safe. Upon this point the court charged as follows:
“If the plaintiff became sick on defendant's boat, and the defendant’s employes knew of her sickness, it was their duty to treat her with such care and consideration as were reasonably necessary to protect her from injury. And if the plaintiff, by reason of such sickness, was weak and helpless, and was seated in a chair in a position wherein she was safe and was protected from injury, and if one of defendant’s employes, knowing her condition, moved her from such safe position by pulling or moving the.chair in which she was sitting, in such manner and in such different position that the plaintiff was unsafe and unprotected, while sick and helpless and unable to care for herself, and was so left by the defendant’s employe, and if, by reason thereof, no negligence of the plaintiff contributing, the plaintiff fell and was injured, the defendant is liable to the plaintiff for damages for the injuries thus sustained, provided you further believe from the evidence that in so doing the act of defendant’s employe-was not the exercise of the highest degree of care by the defendant for the plaintiff’s safety, consistent with the practical operation of defendant’s boat.”
3. It is urged that the court erred in not charging the jury that plaintiff took the risk of the rolling and pitching of the boat and of her own seasickness and that of other passengers. The court did so charge. The jury were repeatedly told that the plaintiff could not recover unless defendant was negligent, that the burden of proof was on the plaintiff, that the mere happening of the accident did not make defendant liable, and expressly that the carrier was not liable for injuries from seasickness or rolling of the boat, apart from negligence.
It is proper to say that the evidence as to the extent of the injury was in sharp conflict. Physicians called by defendant testified that
The judgment is affirmed.