13 Minn. 523 | Minn. | 1868
By the Oowrt On the 4th day of November, 1866, the steamboats “Albany” and “John Eumsey” were navigating the Mississippi Diver, and when near St. Paul and near each other, the boiler of the “John Eumsey” exploded, by which personal injuries were occasioned to the plaintiff, who was a passenger upon the “Albany.” For these injuries this action is brought to recover damages.
When the cause was called for trial in the District Court the defendant, objecting to the trial, moved to strike it from the calendar on.4he ground that the action had by appeal been removed to and was pending in the Supreme Court. The appeal referred to was dismissed at this term on the ground that an appeal was not allowablejin such cases. Fay vs. Davidson, ante p. 298. The objection and motion of the defendant were therefore properly overruled.
The defendant insists that the Court below erred in receiving parol testimony to show that he' was half owner of the “ John Eumsey.” But this point has been determined adversely to the defendant’s views in McMahon vs. Davidson, 12 Minn., 369, 370. See also 1 Parson’s Mer. Law, ch. 3, p. 47. Parsons on Partnership, 549-50.
“1. That in order to charge the defendant William B. Davidson the jury must find from the facts that he had such an
.2. That the mere fact of ¥m. F. Davidson having an interest in the earnings of the boat at the end of the season, would not make him liable for any injuries sustained by reason of its explosion, if he had not such an interest in it so as to control or take part in the hire of the servants, or in discharging them, by whom the negligence if any occurred.
3. That the jury must first be satisfied from the evidence, that the explosion took place by the negligence on the part of those who had control of the boat, or it will not be necessary for them to inquire any further, and they will return a verdict for the defendant.
4. That the mere fact that the explosion took place, will not be sufficient to show that there was any neglect on the part of those having control of the boat. • That explosions have sometimes happened on steamboats that could not be accounted for by scientific men, and on which great care and diligence have been used.
5. That a mere prospective interest in the earnings of the steamboat John Rumsey, to attach and be ascertained at the end of the season, or time during which said earnings accrued and are made, and without any ownership or estate in said boat, and without any control of or participation in the management thereof, does not make defendant Davidson a co-partnér with the owner of said steamboat in the business thereof, much less does it make the defendant Davidson a joint owner thereof; such an interest, even if it existed, did not make the defendant Davidson in anywise liable for the acts and omissions of the servants, officers, or employees of, or on said boat.
6. That the mere fact that the defendant Davidson was a
J. That if H. T. Rumsey had the full control of the management and manning said boat, and that Davidson had no right to interfere with or control the boat, or employees therein, at the time of the accident; if there was negligence Rumsey alone would be responsible, as master, unless the boat was registered in some other name than that of Rumsey.” The Court gave the third instruction requested and refused the rest. The Court among other things said to the jury “ that one question for the jury to determine is, did these parties, Davidson and H. T. Rumsey, own and navigate said steamboat John Rumsey at the time of the alleged explosion, or had they a subsisting agreement by which they were to share in the profits of said boat, or its earnings, under which said boat was being navigated for their mutual profit and advantage, at the time of ■ such explosion, and that if the jury find from the evidence that there was such joint ownership, and use, or such subsisting agreement and mutual interest, and that the boiler of said boat did explode whilst said boat was so used and navigated, by which explosion the plaintiff was injured as alleged in his complaint, and that such explosion was occasioned by the fault of defendants’ servants, the officers having charge of said boat, the defendants would be liable for such damage as. the evidence in the case satisfies you he has sustained by reason of injuries thus received, but such damage cannot exceed the amount named in the com
“ 1. That if the jury find that at the-time of the explosion there was an agreement existing between ¥m. F. Davidson and Harvey T. Bumsey, by which defendant "Win. F. Davidson was a sharer in the profits of the steamer John Bumsey, then the defendant Davidson is responsible for the wrongful acts of the persons in charge of said boat Bumsey.
2. That if the evidence shows that the boiler of the said steamboat John Bumsey exploded, and injured the. plaintiff as alleged in his complaint, and if defendant Davidson was interested in the earnings and navigation of said boat at the time of said' explosion ; that the fact of said explosion is prima facie evidence of negligence, and that the burden is on the defendant to show the contrary.
3. That if the defendants by their servants or agents in charge of said boat, immediately before the explosion of said boiler, knowingly permitted or suffered the water in said boiler to fall and be lower than three inches above the flue of the boiler, unless the same happened through inevitable accident, such act is negligence.” The defendant insists that the Court erred in refusing the instructions asked by himself, and in giving the instructions given upon the Court’s own motion, and upon the request of the plaintiff. We do not deem it necessary to discuss each of these requests and instruction's separately, as many of them cover to some extent the same ground, and are in a greater or less degree, controlled by the same general principles.
Davidson the defendant was not present at the explosion, nor personally.in charge of the John Bumsey at the time of its occurrence, and of course the explosion and injury to the plaintiff are not claimed to have been occasioned by Davidson’s personal ácts or negligence. But if they were occa
The theory which is contended for by the defendant, and which the testimony of his witnesses tends to establish, is that Davidson did not at the time of the explosion own any interest in the “John Rumsey,” nor0 exercise any control over hei', nor take any part in her management; that he had no control over her earnings; no authority or control over, and no power or authority to discharge or interfere with any of her officers or servants, and did not employ any of them; that the boat John Rumsey and its employees were under the exclusive control of Rumsey, the defendant, who hired such employees; that the relation between Davidson and Rumsey was, as testified 'to by defendant Davidson, as follows : “ I had a pooling arrangement with Mr. Rumsey; he owned the John Rumsey and I the Chippewa Falls. I had then boats which we call outside boats, three or four, that is, in the arrangement; the Enterprise, Ciará Hiñe, Gf. H. Cray, also the Alice belonging to Rumsey was in; I think the AN bany was in; am not sure; there were some eight boats in it; two of Rumseys and the rest of mine; these outside boats belonged to me and my brother, and Cápt. Gray owned an interest in one too; at that time I do not know whether there was any one interested in the Albany. Mr. Rumsey was the agent of the freight department of the railroad, and as such
In this case the plaintiff was not a passenger upon the “John Bumsey,” upon which the explosion took place, but
It is claimed that the Court below erred in instructing the jury that the defendant is liable if the explosion was occasioned by the “fault” of the defendant’s servants, having-charge of the boat. It is said that the word “fault” would comprehend “ willful misconduct, and in fact every culpable •act.” The charge, is manifestly obnoxious to this objection, but if taken in reference to the evidence in the case, we think not prejudicial to the defendant. See McLean vs. Burbank, 11 Minn., 287; McMahon vs. Davidson, 12 Minn., 373. It can, however, be readily made more accurate upon anew trial.
It is further urged that the Court below erred in instructing the jury that it was negligence to suffer the water in the boiler to fall and be lower than three inches above the flue'of the boiler, unless the same happened through inevitablejaceident. But the instruction is in accordance]•/with the view taken by the Court in McMahon vs. Davidson, 12, Minn., 374, to which we adhere.
' As the case goes back for a new trial we do not consider the point-that the verdict is not justified by the evidence.
Por the indicated errors of law the judgment must be reversed.