197 Mich. 489 | Mich. | 1917
Lead Opinion
Four young persons, two boys and two girls, were drowned- in Saginaw Bay June 17, 1912. They were Milton Stocum, 16 years old, Ion Lincoln, Nellie Salmon, and Eva Ouilette, also minors. They were riding in a rowboat which belonged to and had been hired of the defendant at Linwood Park, a resort owned and operated by defendant, to which in summer it ran daily excursion trains. Those named and others, with their teachers, went to the park on one of defendant’s trains for a school picnic. The boys had twice before been out upon the waters of the bay in the boat, the second time with two other girls. Upon the third excursion upon the water they were seen at some distance from shore and called to dinner by one of the teachers, and waved a response to the call. Two others, who were rowing out, met them as they were returning to shore. In some manner, for some reason, they soon thereafter disappeared and were not again seen alive. Their bodies were recovered a few days later. A floating seat board, air tank, and oar were found, which it is claimed were a part of the boat. This suit is brought by the mother and administratrix of the estate of Milton Stocum, who alleges in her declaration that defendant is liable for the injury suffered by the said Nettie N. Clark, mother, and Irwin Stocum, father,' of the deceased intestate, on account of his death.
It is alleged in the plaintiff’s declaration, after stating the general relations which existed between plain
“without warning wrecked and fell to pieces upon said water, at a distance of about three-quarters of a mile out from shore, throwing said plaintiff’s intestate and his said three companions into the water, at the same time causing said prow and stern seats, including the air bulkheads or tanks (being the nonsinkable device used in the construction of said boat) to pull loose and out, owing to the rotten condition of the strip of wood to which the same was attached with screw nails, and drift away and sink, causing said steel boat hull to sink beneath the surface of the water, whereby plaintiff’s intestate and his said three companions were drowned in said water.”
The personal representative of young Lincoln also instituted a suit against this defendant, which upon a trial was determined in favor of the defendant upon the opening statement of counsel for plaintiff. Upon error, the judgment of the circuit court was reversed and a new trial granted. Lincoln v. Railway Co., 179 Mich. 189 (146 N. W. 405, 51 L. R. A. [N. S.] 710). Upon the last trial the Lincoln Case and the Stocum Case were tried practically as one case and submitted to the same jury. There was a verdict returned for each plaintiff, and a separate judgment entered for each. A reference to the opinion of this court above referred to will disclose that it was concluded that upon the statement of plaintiff’s counsel it could not be determined as matter of law that defendant was not, in some of the respects alleged, negligent, and that, upon the same statement, the presumption was that plaintiff’s decedent exercised due care — a presumption sufficient to permit recovery, if negligence of defendant was made out.
Plaintiff declares that the persons entitled to the
There were 13 boats at the resort, numbered. The boats numbered 21, 22, 23, 24, 25, and 26 were bought at one time — in August, 1915 — and 21, 22, and 23 were of the same size. Made by the Michigan Steel Boat Company of Detroit, Mich., they were known as “B 14-foot square stern special livery boats.” They were 14 feet long, 44 inches wide amidships, and 14 inches deep amidships; height of bow 22 inches, and of stern 24 inches. The shells, or hulls, are described in the catalogue introduced in evidence in the following language :
“In considering the construction of our steel hulls,*495 bear in. mind that they are not stamped or pressed ; they are made of heavily galvanized steel (made to order for us), cut in regular pattern strips, lock seamed and welded together by pneumatic hammers. The seams are rolled the same as steel is rolled from the billet, thus retaining its original rigidity and strength. The seams in each of our boats are placed four inches apart and have four thicknesses of steel, which run from bow to stern, acting as a steel girder encircling the hull and making it practically impossible for same to leak or come apart. They are not bulky and heavy, as are the smooth skin boats, which have no force to resist the waves or any other object with which they might come in contact, and they are not built with the exposed ■ rivets, as are the above-mentioned boats, so that it is only a question of time when the water and weather will wear the rivets away, and then the boat will rust, and leaks will spring when the boat receives a hard knock. It stands to reason that boats built with the concealed rivets and the lock seam can resist the waves and can stand knocks and jars, as the seams protect the hull and, the rivets being concealed, the water and weather cannot wear them away. All bolts, rivets, and screws in our boats are heavily galvanized. Every Michigan steel boat is equipped, bow and stern, with air-tight compartments, which pass a rigid hot-water test and are in-cased and not visible; therefore nothing can injure these air tanks, and each boat carries sufficient of these to insure the boat being absolutely nonsinkable —in fact, any Michigan steel boat filled with water will support its occupants.”
The sterns of the boats were wood; there were three wooden seats, as well as a small wooden deck at the bow; and, running longitudinally, strips of wood, some of them used as flooring. The rear seat, like the other-seats, was- lower than the gunwale of the boat, and lower than the stern, which showed several inches above the seat. The boat in question was numbered 22. Plaintiff claims it was not seaworthy; defendant, that no proper testimony tends to prove it was unseaworthy, and that much testimony relating to the con
Stated very briefly, the testimony relating to the condition of boat No. 22 was that of George Walmsley, who testified that on the Sunday previous to the loss of the boat he rented a boat from the defendant, went out with it upon the bay, and while in the boat he marked certain initials upon the back seat. The seat board found after the catastrophe in question here, and claimed to have been in boat No. 22, was produced, and the witness identified the initials found upon it. He was out, he said, from a half to three-quarters of an hour. Asked to describe the condition the boat was in, he testified that it was in an unfit condition, was pulled apart “in back and there was rusty screws pulled out of the wood. The rear seat was loose and in right back of the rear seat is where the boat pulled apart — spréad apart at the top.” What he describes is that, by sitting in the center of the boat, facing the stern, there could be and was seen above the seat a space between the side of the boat and the board which made the back to the seat on the left-hand side. He testified that, when the man who was with him sat in the back seat, it did not leak. When the witness sat there, “I was heavier than what he was, it was down lower in the water, and the water splashing up came in, not a great quantity, but there was water coming in.” He further testified that he “took hold of the side and kind of pulled in on it, and it seemed to be pretty weak,” and that the sides of the boat went and came when the oars were used. He went ashore, he said, because he thought the boat was unsafe; that there was a small amount of water got into the boat; that the water was not very rough, and was not smooth. He further testified that by sitting in the center seat he could see that the boat at the stern was spread apart under the rear seat; he should judge it
The two boys who used this boat on the afternoon in question, and who lost their lives, were twice out upon the bay with the boat before making the trip when the boat was lost. After they had once been out with the boat, they invited two girls, one of them a teacher, to go upon the water with them, and they did go. Lincoln sat in the middle seat and rowed the boat. Milton Stocum sat upon the bow seat, and the two girls occupied the back seat. They went out a half a mile, “more or less,” and were out about 40 minutes. The teacher, Miss Tebeau, testified that the boys rocked the boat and splashed water upon them, rocking the boat until it dipped water from both sides; Milton Stocum standing up in the front part of the boat and rocking it. She was frightened, and asked the boys to take her back to shore, and that shortly after they did return to shore, when these two young ladies got out, and the boys then took in two other girls, who were with them when all were lost. There was no water in the boat when these young ladies first named went out with the boys, but before they returned there was enough water in the boat so that their feet and dresses were wet. The other young lady testified that, while she did not try to upset the boat, she, with the boys, rocked it as hard as she could, getting enough water in the boat to get wet, rocking
“Q. And the boat stayed on top of the water all the way until you got in?
“A. The boat stayed on top of the water.
“Q. You gave it a good thorough test, then?
“A. Yes, sir.”
It has been stated that in the course of the trial a seat, assumed to be the back seat of boat No. 22, and an air tank, assumed to be the air tank which was under that seat, were produced. Testimony was introduced tending to prove that there were screws in the back seat which had evidently been at some time imbedded in wood and had been pulled out or loosened, there being particles of wood in the threads of the screws. One or more witnesses expressed the opinion that the condition of the particles of wood adhering to the screws indicated that the wood was rotten. Nothing had been done to boat No. 22 by way of overhauling or repairing for the season of 1912. Witnesses were permitted to testify that after the loss of the boat No. 22 they examined other boats belonging to defendant, used in its boat livery, and to describe to the jury the condition of those boats. Of this testimony the learned trial judge in his charge to the jury said:
“Now, lest we forget it, I want to say right here there was some evidence, introduced and submitted to you, tending to show what the condition of some of the other boats were that lay on the beach, a day or two after this unfortunate drowning occurred. I admitted that evidence with considerable reluctance, because you can see how dangerous it is for you to judge of the condition that one boat was in by the condition of another boat that happened to lay there. You all, as prudent and careful men, will see that that is dangerous, if you should say that, because a boat was found on the beach in a certain condition, this boat that was lost was in a similar condition. But*499 there was testimony in the case tending to show that these boats probably were all in the same condition. And so I said to counsel that evidence should go in, and I should deem it my duty to caution you as to the weight you should give it. I am not saying that you should not give it weight; that is for you to say. But I am cautioning you that it is of a different class of evidence, so far as the weight is concerned, than that of some one who had made an examination of this particular boat. And in determining the weight you' will give that you must consider the testimony offered by the defendant as to the condition of these boats, and as to when this boat and other boats like it were repaired, and so on.”
The testimony as to the condition of other boats did not tend to prove that the other boats were in one condition, but rather that they were ih various conditions as to repair.
Defendant asked the circuit judge to direct a verdict for the defendant, because there was no evidence of defendant’s negligence. Various other requests to charge were proposed on the part of the defendant and appellant, some of which were refused; the principal complaint being that the court refused to instruct the jury that it was not incumbent upon defendant’s agent to see that the rented boat was not overloaded, and, akin to this, the request to charge that, if the boat was overloaded, that was the fault of the young men who invited others to use it with them. Error is assigned upon the refusal of the court to instruct that the occasion of the death of plaintiff’s intestate was conjectural or speculative. Error is assigned, also, upon the charge as given, and upon the refusal to set aside the verdict and grant a new trial. It is well enough, in considering this case, to say in the beginning that the case is not made complex by alleging that defendant owed to plaintiff’s decedent and his companions a multitude of duties, setting them out and alleging that each of them was breached. The case is really a very
In the case developed there is no rough water, although the water was not perfectly smooth, no particular wind, no overloaded boat, no hiring of the boat to immature and tender youths. Lincoln was a high school graduate; Stocum was 16 years old. There is no testimony tending to prove that either was not perfectly at home in a rowboat; none that Lincoln, who so far as is known did the rowing, was not a capable oarsman. The ability of the boys, or of Lincoln, to navigate the boat, is demonstrated, as well as the fact that' the boat did and could safely carry four persons. There is no testimony which tends to prove that the hull of the boat was infirm or that the boat leaked. The seats may have been loosened, or imperfectly fastened; but in use the boat was proven to be safe, with the load which it carried. As a witness for defendant, the owner of a similar boat, testified, and as is matter of common knowledge, it makes" no difference about the wood “as long as the shell on the outside of the boat is whole, as long as there is a seat there to sit down on, and no leakage alongside of the shell, it is perfectly safe.” Except the stern and, possibly, a small part at the bow,_ and a keel, the wood in the boat was all inside of the hull, or shell, and might
Lincoln and Stocum, after rocking the boat so as to give it some load of water, were not themselves affected with any evidence of infirmity in the boat. At no time were they seen or heard to give signals as if in trouble. Quite the contrary. The witness who found the hull to be flexible, yielding when he pulled upon its sides and when the oars were used, discovered only what most persons know who ever have used a metal boat, or one of any material built with laps, whether the laps ran longitudinally or latitudinally the boat. This boat, after the demonstration described, disappeared with its passengers.. By all rules of probability, by all natural inferences from known facts, it ought to have come safely to shore, if properly managed, and if the passengers behaved as circumstances required. It is assumed that the boat sank. But what made it sink? What room is there for inference based upon established facts? Clearly there is none; established facts supporting conclusively no theory of destruction, but supporting best the inference, based upon demonstration, that the cause was not the infirmity of the boat. What may be conjectured? Plainly, several things. Some of the occupants of the boat attempted to exchange seats? The young men indulged in another rocking of the boat? Experience has proven these to be each of them common enough causes for capsizing boats and death by drowning. What right— logically — has one to say rather that the boat collapsed, supported as it was by water, or that it suddenly sprung a leak?
It is said that, no one having seen the boat when it disappeared, it is presumed that those on board her were using due care. Indulging this presumption, it is argued, we are left to find the cause of the catastrophe in the condition of the boat. This is not necessar
It may be said, and there is in the brief suggestion to the effect, that if the boat from any cause capsized it would then be of importance to have seats and air tanks, safely and soundly attached to the boat. This may be admitted, since a hull which would not sink when filled with water might also support for some time,. in certain conditions, persons thrown into the water. This consideration should not divert attention from the true question to be determined. Once it is assumed that the boat was capsized, did not by its own infirmity cause the hazard and crisis following its capsizing, plaintiff has failed in this action. Negligence and consequent liability of defendant is not, and cannot be upon this record, predicated of failure to furnish a boat which, when capsized, would float, supporting in the water four clinging passengers. Perfectly
The facts established at the trial are not the facts stated by counsel and considered by the court in Lincoln v. Railway Co., supra, although it is probable that the trial court believed the decision in that case required this one to go to a jury. In my opinion, the court should have instructed the jury that negligence of defendant was not made out, and that, if in any respect found to have been negligent, it was purely conjectural whether the loss of the boat and of the lives was-the result of its negligence.
The conclusion I have stated disposes' of the case, and requires a reversal of the judgment. It is not deemed proper to refuse plaintiff a new trial, although upon this record there can be no recovery. If a new trial is had, some questions arising upon this record are likely to again arise. As to the right of the mother of decedent to maintain the action, it is settled in Yost v. Railway Co., 163 Mich. 564 (128 N. W. 784, 31 L. R. A. [N. S.] 519, Am. & Eng. Ann. Cas. 1912A, 988). The testimony of the condition of other boats, examined after the loss of the particular boat, ought to have been excluded; its admission being error. A reason for its exclusion has been given. A further one is that little, if any, of it tended to prove the boats to be in-a leaky or unseaworthy condition. Error was not avoided by a caution as to the weight to be given to the evidence. The weight of evidence is for the jury.
Dissenting Opinion
(dissenting). The negligence of the defendant became a question of fact for the jury upon the record here presented, for the reasons stated in my opinion in the case of Lincoln v. Railway Co., post, 504 (168 N. W. 969), handed down herewith.
The judgment should be affirmed.
