77 Pa. 238 | Pa. | 1870
delivered the opinion of the court,
The plaintiffs in the court below were the owners of a steam towboat called the “Dart,” and they brought this action to recover the amount due to them for towing three barges laden with coal, from Pittsburg to Louisville, down the Ohio river. Their demand was not controverted, but the defendants, under the pleas of set-off and payment, made a counter-claim on the plaintiffs for damages alleged to have been suffered by them from the loss of three other coal barges, which the plaintiffs had undertaken to tow at the same time, and which-were wrecked and sunk by the negligence of the plaintiffs or their servants. The defendants thus became actors, and, as the owners of a tow-boat, as has been held by this court in Leonard v. Hendrickson, 6 Harris 40, and Brown v. Clegg, 13 P. F. Smith 51, are not common carriers, the onus was upon them to show affirmatively negligence. It is important to bear this in mind. A common carrier is an insurer against all losses, except such as arise from the act of God or the public enemies, and in case of a loss it is incumbent upon him to bring himself within the exception. The defendants below did give evidence of the circumstances of the occurrence, which was a collision with another tow, from which the loss resulted, and by which, as is contended, negligence or want of skill of the servants in charge of the “Dart” was to be inferred. To rebut this with other evidence, the plaintiffs offered to show that their servants — t-he pilot and engineer— .were competent, skilful and careful officers. This was objected to by the defendants, but admitted by the court, and the admissibility of this evidence is the only question presented by the assignments of error.
It is to be remarked, so as not to confound matters which are distinct, that the evidence offered was not as to the reputation of these men, but by experts well acquaintod with them and competent to form a judgment of their qualifications, that in point of fact they were competent, skilful and careful. This is putting the point in its strongest possible aspect for the plaintiffs below; for clearly on no principle would their reputation for skill and competency have been admissible as .relevant to the issue
Judgment reversed, and a venire facias de novo awarded.