46 Ky. 538 | Ky. Ct. App. | 1847
delivered the opinion of the Court,
This action on the case by Inman, Galt, &c., against Funk, is founded on the allegation that the plaintiffs be* ing possessed of a flat boat loaded with coke, tied to the wharf at Louisville, and the defendant being possessed of another flat boat, &c., the defendant did, by himself and servants, manage, and control his boat so carelessly, that it ran against the plaintiff’s boat, whereby she was sunk and the coke lost, &c. The collision occurred in removing the defendant’s boat from a position above to one below that of the plaintiff’s boat, in doing which the defendant’s boat necessarily passed outside of the plaintiff’s. Whether the collision was violent or not, and whether it occasioned the sinking of the plaintiff’s boat, are matters as to which there is some discrepancy in the evidence upon which it was the province of the jury to decide. But there was evidence conducing to prove that-the plaintiff’s boat was not so strong as boats ordinarily are in which coke or coal is transported on the Ohio river, and the principal question in the case is as to the effect to which this fact should be entitled in determining the liability of the defendant or the degree of diligence to which he was bound in removing his boat.
As the plaintiff’s boat was lying fastened to the wharf, and the defendant, in removing his boat from above, was placing her in a situation which required care and effort to keep her from striking the boat of the plain tiffs, from the mere force of the current, the duty of using this care and effort devolved upon the defendant, and the plaintiffs were only bound, in case the danger of collision became apparent, to use such reasonable means as might then have been in their power, to avoid itorto mitigate its consequences.'- But it was the duty of the defendant to use
The question is not whether as many men were employed in removing the defendant’s boat as are usually employed for such a purpose, nor whether they removed it in the ordinary way, but whether, considering the state of the river and the situation of the two boats, proper means were used by the defendant and his agents to avoid or prevent a collision. And by proper means, we intend, such precautions and exertions directed to the prevention of collision as under the circumstances, would have been deemed sufficient by men of ordinary vigilance and prudence, and such as would, in all reasonable probability, have succeeded, but for some unforeseen circumstance or accident, which men of ordinary prudence and care could srot have been expected to guard against. If the defend
The instructions given by the Court, and especially under the qualification that the insufficiency of the plaintiff’s boat to stand the necessary and ordinary collisions, might relieve the defendant from responsibility to some extent, do not, according to the foregoing view, contain a fair exposition of the law, and were calculated to mislead the jury as to the duty and liability of the defendant.
Wherefore, the judgment is' reversed and the cause remanded fora new trial,