Chouteau v. Uhrig

10 Mo. 62 | Mo. | 1846

Napton, J.,

delivered the opinion of the Court.

This was- an action of assumpsit brought by Uhrig and others as owners of the keel-boat Hornet, against Chouteau and others, owners of the steamboat Mermaid, to recover the value of the said keel-boat, alleged to have been lost through the negligence of the officers of the Mermaid. The keel-boat was hired to the Captain of the Mermaid, at the rate of $2:50 per day, to be returned in good order at the option of either party. The keel-boat was snagged and sunk whilst the Mermaid was attempting to land on the Illinois shore, just above the mouth of the Missouri.

The plaintiffs obtained a verdict, but the Court on motion of the defendants, set the same aside, and granted a new trial. The second trial resulted as the first, in a verdict for the plaintiffs for $460, the full value of the keel. A motion was made for another trial, but it was overruled and the case brought here by appeal.

The Bill of Exceptions gives the evidence on the second trial in detail. The plaintiffs endeavored to show negligence in the officers of the Mermaid, in running after night, during a storm, and in attempting to land at an unsuitable place. The evidence on the other side was designed to show, that every proper and ordinary precaution was used to prevent loss, and that the loss in fact was occasioned by the elements or perils of the river, against which the contract did not insure the defendants.

The Court gave the following instruction at the request of the plaintiffs : “ The defendants, or so many of them as were owners of the steamboat at the time of the hiring of the keel-boat, are liable in the present action, if the loss of the keel-boat was occasioned by the omission of ordinary care on the part of the officers or hands employed on the steamboat. And by ordinary care is meant, such care as a prudent man exercises about his own property.

The jury then will consider whether there was a want of such care in either of the following particulars: — ■

1st. In proceeding on the voyage, under the circumstances, in the night time.

2nd. In proceeding on the voyage after a Storm arose.

3rd. In the selection of the place, or in the manner of bringing the steamboat to land.

4th. In omitting reasonable efforts to rescue the keel-boat after it had struck.

And if the jury find that there was such want of care, and that the keel-boat was thereby destroyed, they will find for the plaintiffs ; and in” either of the three first mentioned cases they will give the plaintiffs for damages the value of the keel-boat; and in the fourth case if they find for the plaintiffs on that alone, they will give as damages a sum equivalent to so much of the value of the keel-boat as might have been saved by such reasonable efforts to rescue it.”

Instructions were asked by the defendants, but refused. They are not copied in the bill of exceptions.

The principal ground upon which the appellants ask a reversal of the judgment is the instruction which the Court gave to the jury. This instruction is objected to, as assuming the existence of material facts which should have been stated hypothetically. Running in the night time, and after a storm arose, and omitting reasonable efforts to rescue the keel, are supposed to be assumed as facts in the instruction. If this be the proper and fair construction of the Judge’s language, and it was likely so to be understood by the jury, there can be no dispute of its impropriety. The instruction is not couched in the style usually adopted, and the objections taken to them now, at least, show the policy of adhering to the customary forms of proceeding in Courts, even at the risk of tiresome repetitions, yet we do not understand them as assuming the facts about which the jury were to enquire. For example, in the fourth particular to which the attention of the jury was called, they were directed to enquire whether there was any negligence in omitting reasonable efforts to rescue the keel-boat after it had styuck. This surely did not mean to assert that reasonable efforts were omitted, for if so, there was nothing for the jury to enquire about, as the omission of such efforts would be of itself gross negligence. So where in the first proposition the enquiry is, whether there was a want of reasonable care in proceeding on the voyage in the night time, it is not meant to assert that the voyage was prosecuted in the night time, but as there was testimony on this head, the jury were left to enquire into the fact, and to ascertain, if they found it existed, whether it amounted to negligence. The same may be said in relation to the other propositions. The charge is more special than is usual in our practice, but we know of no law which could be construed as prohibiting such instructions.

It has also been objected to this charge of the Court, that it assumes the existence of a contract between the owners of the steamboat and the owners of the keel, and takes for granted that the plaintiffs had been proved to be the owners of the one, and the defendants of the other. The lánguage of the instruction is: “ The defendants, or so many of them as were owners of the steamboat at the time of the hiring of the keel-boat, are liable,” Sea This does not assume that the defendants were owners, but tells the jury that the defendants, provided they are the owners, or so many of them as may be proved to be the owners, are liable in-certain contingencies specified. The instruction, it is true, does .assume that there was a contract between the parties, and therein is erroneous, but as was observed in the case of Thompson vs. Botts, (8 M. R.) we are not inclined to reverse a judgment for so trivial an oversight, where it is apparent it could have prodused no harm. Such inadvertencies will occur even with the most diligent, and the administration of justice would be exceedingly perplexing and expensive if their occurrence should be permitted to undo the deliberate judgments of our Courts, in cases where it was manifest that the same result must ensue upon a correction of the error.

The newly discovered evidence of J. W. Call, relates to a point upon which the case did not turn. The verdict of the jury was for the full value of the boat, manifesting thereby the opinion that the keel had been lost through the mismanagement or carelessness of the defendants. Call’s testimony relates- entirely to the effort's to raise the keel, and does not seem to have any material bearing upon the merits of the case.

After two verdicts in favor of the plaintiffs, in a case peculiarly suited to the investigation of a jury conversant with the usages of the steamboat trade, the interference of this Court upon a mere question of preponderating testimony could scarcely be expected. ' The judgment will therefore be affirmed; — Judge Scott concurring.