99 Tenn. 256 | Tenn. | 1897
This is a suit for damages, brought by the defendant in error against the West Memphis. Packet Company and Memphis & Arkansas Ferry Company, the gravamen of the complaint being that while a passenger on the steamboat ‘ ‘ Golden Gate,” operated, as is alleged, by and in the joint interest of plaintiffs in error, owing to the failure of their servants to preserve order and decorum on
As to the facts, it is only necessary to say that the evidence tended to show that plaintiffs in error were rival corporations, operating different steamboats, doing a ferry business from Memphis to different points on the west shore of the Mississippi River, and, at the same time, giving occasional excursions (for revenue), to which the public were invited; that this rivalry was attended with much loss to both companies, and at last resulted in litigation; that, pending this litigation, they entered into an agreement by which the West Memphis Packet Company was to retire and tie up its steamer, the -“C. B. Bryan,” until necessity should cMl ' it out, and that the Memphis & Arkansas Ferry Company should •continue its steamer, ' the ‘ ‘ Golden Gate, ’ ’ in operation, to do’ the work theretofore done by the two steamers, in the interest of both companies, they sharing equally the losses and profits; that this agreement provided for a board of arbitrators, who should ■choose the officers of the combination and the employes to man this boat; that this board was never constituted, but that all officers of the Memphis &
The evidence farther discloses that one of the general officers of the company owning the ‘'Golden Gate, ’ ’ and engaged in operating this steamer, was James Couch; that he, through the newspapers of Memphis, advertised that an excursion would be given by that boat to a point some twenty miles below Memphis; that this advertisement had general publicity, and was known to Mr. Bryan,' of the West Memphis Packet Company, and treasurer of the combination, several days before it occurred, and that he made no objection to it; that, while both boats, before the combination, made similar excursions in the interest of the rival companies, such as occurred afterwards were made by the "Golden Gate'’ on joint account, and that the proceeds of this excursion were paid by Couch into the treasury of the Memphis & Arkansas Ferry Company.
The evidence also discloses that the defendant in error, with his children, in company with seventy-five or one hundred other persons, of all ages and both sexes, embarked as passengers on this excursion, and that among these passengers were a number who were armed with guns and pistols, who, occupying positions on the different decks of the boat, soon after it left its moorings and got under way, began anu indiscriminate firing at objects in the water, to
Among the persons standing near Phillipi, watching and interested in the experiment, was Couch, the party who advertised the excursion. The evidence shows that not only he had not endeavored to stop the firing, but he had encouraged it by ac-tivety participating in it.
The contention of the plaintiff in error was that this excursion was an individual enterprise of Couch’s, in which their combination was not interested, and also that Couch was not the master nor in charge of the boat on this excursion; but there was evi
After the evidence of the plaintiff was in, the defendánts moved the Court to exclude it from the jury, upon the ground that it would not support a verdict in his favor. This motion was overruled, and the action of the Court in this’ regard is assigned for error, and an earnest argument is submitted, insisting upon this as a proper practice in this State. Whether the .practice is a wise one, and, as such, should be adopted, it is not necessary for us to determine. It is sufficient to say that it has never prevailed in Tennessee, and there was certainly nothing in the testimony, as we find it in this record, which would have warranted its introduction and application in this case.
Sweeping objection is made to the charge of the trial Judge that it abounds in generalities without application to the facts of the case, and that its effect was to confuse or mislead the jury, rather than guide them to an intelligent verdict.
We have carefully examined the charge, in view of the interest involved and the hurt that could easily, in such a case, be unconsciously inflicted by the trial Judge on plaintiffs in error, and, while we find in it more or less of generalization and abstraction, which it would have been wiser to avoid, yet, we
Among the instructions given, and which, it is now insisted, were either confusing generalities or else positively erroneous when applied to the facts of this case, is the following: “The lawfulness of an act from which injury results- is no excuse for the negligence, unskillfulness, or incaution of the party. Everyon'e in the exercise of a lawful act is bound to use such reasonable and vigilant precaution as that no injury may be done to others. Nor is it material in this action whether the injury was willful or not, but the gist of the action is whether or not the defendant used proper care in allowing the passengers using guns to use them in the manner the evidence shows they did use them on this trip. ’ ’
It is conceded that if this was an action against the party who placed the loaded shell in the gun, and pointed it downward towards the defendant in error, when it was discharged to his hurt, that the fact that the explosion was unexpected and accidental, would not discharge such party from liability. For
It is next insisted that there was error in giving the following instructions: “While he (the carrier) is not an insurer or bound to carry passengers safely at all events, yet the rule as to the care and foresight to be exercised makes him responsible for injuries and losses arising from even the slightest negligence in not providing safe and suitable means of transportation, or skilled, competent, and careful officers and crew, or in formulating and enforcing such rules of order and decorum as will secure and protect the passengers ' from injuries arising from careless,' thoughtless, or negligent acts of their fellow passengers. The defendants in this case were bound to exercise the utmost care and vigilance for maintaining order and guarding the plaintiff, White, who was a passenger on board the boat, against personal injury, from whatever source arising, which might reasonably have been expected to occur, in view of all the circumstances of the case and the number and character of the passengers on board the boat.”
In the leading case in America of Flint v. Norwich, 6 Blatchford, 158, Shipman, Justice, in submitting to the jury a case involving the liability of a steamer and its owners for an injury sustained by one passenger from the act of a fellow passenger, said: “The defendants were bound to exercise the utmost vigilance and care in maintaining order and guarding the passengers against violence from whatever source arising, which might reasonably be anticipated or naturally be expected to occur, in view of all the circumstances, and of the number and character of the persons on board.” This is regarded- as a fair statement of the rule, and it has been adopted and approved by the Courts where
While there will be found some general observations of the Court which give some support to the view here insisted on, yet, take the opinion as a whole, we think it in line with Flint v. Norwich, supra. The Court say: “It is the duty of carriers by rail to preserve order in their carriage, and to protect
In Simmons v. Steamboat Co., 97 Mass., 361 (S. C., 93 Am. Dec., 99), the Court does make a distinction in the degree of care to be exercised in the one case and then in the other. The Court there say: “The defendants were bound to see that their officers, agents, and servants used the utmost care and diligence in keeping the steamboat suitably provided with suitable machinery, boats, : . . and competent officers and crew, . . . and in making all arrangements necessary to secure the passengers against any danger which might be anticipated from the action of rivers and seas, of the officers, . . . or of other passengers. They were not, indeed, responsible for the negligent or wrongful acts of the
It will be seen that there is a slightly appreciable difference in the degrees of care exacted in the two classes of cases, but it falls far short of the modification of the rule insisted on by the plaintiffs in error. Nor do we see any sound reason for such modification. On the contrary, we think that carriers by land, as well as on the water, with power conferred by law to protect passengers who have committed themselves to their care, ought to be held to the greater degree of diligence in guarding them from the negligence, as well as violence, of their fellow passengers, when, as prudent men, knowing the surrounding facts, they might well anticipate that the acts in question might be attended with injury. And we certainly find nothing in the facts of this case, especially so far as the Memphis & Arkansas Ferry Co. is concerned, that should induce a relaxation of the rule, as we think the conduct of the parties' in charge of this boat was only a little short of gross negligence. But, again, it is contended that this rule of ‘'utmost care ’ ’ had been enforced alone in cases where passengers had received injuries from mobs, riots, or from assaults or other form of violence of drunken or insane parties, and
Simmons v. Steamboat Co., supra, is a leading-case enforcing a contrary view. In that case, plaintiff was a passenger on the steamboat, and took a position on deck, as he had the right to do, and at a point underneath a small boat which was suspended by tackle and falls, a part of the necessary equipment of the steamer. There was nothing in the evidence to indicate that this small boat was improperly hung or insecurely fastened. The plaintiff showed, however, that when he took his position, there were already two persons in this boat, and that shortly after this number was increased to live.. It was also in evidence that passengers, before the day in question, rode in this boat, with the knowledge and permission of the officers of the steamer. While plaintiff was standing under it, the stern bolt broke, and it fell on plaintiff, and injured him seriously. The Court say: “They [the steamboat company] were bound to use the utmost skill and care of prudent men in taking precautions to prevent any passenger from being injured by the ignorant, negligent, or reckless acts of other passengers. As to the boat, . . . the fact that it was hung in the place in which it was by order of the-government inspector, did not protect the defendants-from responsibility for negligence in the manner of hanging or using it. They were still bound to use
In Carpenter v. Railroad Co., 97 N. Y., 494 (S. C., 49 A. R., 540), the same rule was applied. There a passenger, while entering a station for the purpose of taking a train, was struck by a mail bag carelessly and negligently thrown from the mail car by a postal clerk employed by the United States government, and, it was held that the clerk and the injured party were fellow passengers; that the railroad owed the duty of utmost vigilance to protect the one from an injury resulting from the negligence of the other, that the manner of throwing off these mail bags was dangerous, and that this had been so long the customary method of disposing of them that notice to the railroad company might be fairly implied. On the same point see Galloway v. Chicago & Mil. Railroad (Minn.), 23 L. R. A., 442.
A number of special requests were submitted by plaintiffs in error, some of which were rejected and others given in a modified form. As we are satisfied with the general charge, only one of these will be noticed. The trial Judge was asked and declined to give the following: “If the jury believe, from the evidence, that the defendant, the West Memphis
The real contention of both plaintiffs in error, in the progress of this cause, has been that this excursion was an individual affair of Couch’s, for which neither was responsible, with the additional incidental insistence of the West Memphis Packet Company that it was not liable because the ‘ ‘ Golden Gate ’ ’ was not managed by the regular officers of the Memphis & Arkansas Ferry Company, who were, for the time being, the officers of the joint enterprise. Both phases of this contention were submitted sufficiently to the jury. ,
In the outset of his charge, the trial Judge says distinctly to the jury that, among other essentials to recovery by plaintiff below, “the evidence must satisfy you [them] that the Golden Gate wa¡s being run by and in the interest of defendants at the time of the injury.” This clearly put the burden on the plaintiff below of showing that the West Memphis Pácket Company was interested in this venture, as a prerequisite to recovery, and in this sentence the trial Judge covers the point to which this special request was directed. The same reply may be made as to the refusal of the trial Judge to give the further special request as to the liability
But we are asked to reverse this judgment upon the ground that the verdict is excessive. The testimony shows that the defendant in error was shot through the finger and the thumb of his left hand, that his right arm was perforated from his shoulder to his hand, with shot, a great number of which were never extracted. It also appears that several shot entered the right leg and one at the joint of left ankle. While the surgeon who attended him said he regarded the wounds as not at all serious, yet there is testimony, upon which the jury were warranted in acting, that this injury has permanently affected his strength, and especially his capacity for lifting, a power very valuable to him as a laboring man. This question of damages was one peculiarly for the jury, and, in the absence of a conviction that their verdict is the result of caprice, prejudice or corruption, we do not feel authorized to interfere with it.
Judgment is affirmed.