McLean v. Burbank

| Minn. | Jan 15, 1866

By the Oowrt

McMillan, J.

This is an appeal by the defendants from an order of the District Court, granting a new trial. The only exceptions on the .trial were those taken to the charge of the court to the jury.

It is unnecessary, in the view we take of this case, to discuss the weight of evidence, and as the case may again come before a jury, we refrain from any comments on the facts,'as developed on the trial, but rest the case upon the questions of law involved in it.

The first request submitted by the plaintiff, was as follows: “Proof that the plaintiff’s intestate was a passenger of the defendants’, and that the accident occasioned the death, devolves upon the defendants the burden of exonerating themselves, by proof of diligence.” This request was refused, to which refusal the plaintiff excepted.

The proposition contained in this request, must be considered, not as an abstract question, but as a statement of the law applicable to this case, under the evidence received upon the trial. It is undisputed that the accident was occasioned by the uncoupling of the coach, and its precipitation into the river, while being driven on to the ferry boat, and that the occurrence transpired on the road, while the coach was in transit, the driver in his place in charge of the horses, the passengers inside of the coach. "Whatever may be the general rule as to .the presumption of negligence in the carrier of passengers, the circumstances in this ease, as developed on the trial, are clearly sufficient, in view of any of the authorities, to justify the charge as requested. “Where any damage or injury,” says Story, “happens to the passengers by the breaking down or overturning of the coach, or by any other accident on the road, the presumption, prima facie is, that it occurred by the negligence of the coachman, and the onus probanda is on the proprietors of the coach to establish that there has been no negligence whatever.” Story on Bailments, Sec. 601; Stokes v. Salstenstall, 13 Pet. 181" court="SCOTUS" date_filed="1839-03-18" href="https://app.midpage.ai/document/stokes-v-saltonstall-86087?utm_source=webapp" opinion_id="86087">13 Pet. 181; Christie v. Grigg, 2 Camp. 79; Ware v. Gray, 11 Pick. 106; Laing v. Colder et al, 8 Penn. St. R. 481; Brehm v. Great West. R. Co., 34 Barb. 270. The defendant’s counsel urges that the request assumes that, the accident was caused by the defendants, or was their work or act, which, is the point at issue; this we think is erroneous ; upon the facts proved, we think the burthen of proof that it was not the act of the defendants, was upon the defense. But at all events, in the view we take of the liability of the defendants for an accident on the ferry boat, the proposition was clearly correct. It was therefore erroneous to refuse the instruction requested.

The fourth request of the plaintiff was as follows: “ That if the jury find from the evidence, that the place of crossing the ferry at the time of the accident, was one of danger, and on account of there being no lights on the coach, or that on account of there being no notice given to the passengers of the approach to the ferry, so that they might have got out, or been apprised of their danger, and that the highest degree of vigilance and caution was not used by the agents of the defendant in warning the passengers, it is evidence of negligence, as are the acts and omissions in the last preceding request.” The court refused the instruction, and the plaintiff excepted.

The law imposes upon the common carrier of passengers, the greatest care and foresight for the safety of his passengers, and holds him liable for the slightest neglect. This duty and responsibility exists not only in respect to the vehicle, but to every means and instrument used or embraced by the carrier in the transportation, and extends throughout the entire journey. Story on Bailments, Sec. 601; 1 Pars. on Conts. 690; 2 Kent, 602, (marg.); 2 Greenl. Ev. Sec. 222; McElroy et ux v. N. & L. R. Corp., 4 Cush. 400. This embraces the duty of giving notice to the passengers, of places in the road, the passage of which is attended with more than ordinary danger, or requires special care or caution on the part of the passengers, and the neglect of the carrier to give the notice, will render him liable in case of injury. Maury v. Talmadge, 2 McLean, 164; Laing v. Colder, 8 Penn. St. R. 483; Story on Bailments, Sec. 598 and authorities cited; 2 Greenl. Ev., Sec. 221; Stokes v. Saltenstall, 13 Pet. 192. The facts referred to and embraced in the request under consideration, are at least evidence of neglect, and although the proposition as contained in the paper book is not clearly expressed, it was no doubt understood at the trial, by counsel of both parties, as a request to charge that the facts mentioned in the request are evidence of negligence in the defendants. This being the case, the instruction should have been given.

The first request submitted by the defendants, was as follows: “ That common carriers of passengers are liable only for the want of such care and diligence as is characteristic of cautious persons, and that in this case, unless there was a want of such care and diligence, the defendants are not liable,” which was charged by the court, and the plaintiff excepted. This, we think, is not an accurate statement of the law with respect to the liability of common carriers of passengers. As we have already seen, they are held to the greatest care and foresight, for the safety of the passengers. This is a greater degree of care and diligence than that stated in the request. The language of the instruction is too restrictive; it would not impose upon the carrier ewtraordina/ry diligence, nor hold him liable for the slightest negligence,- but would require only ordinary diligence. Story on Bailments, Secs. 11-17; 2 Greenl. Ev., Sec. 253, n. 2. Although the language in the request is substantially that of a learned judge, in an action against a carrier, it is to be observed that the action was for the loss of baggage only, and the court was not called upon, and did not intend to, lay down a'rule as to the extent of the liability of the common carrier of passengers, except so far as to illustrate the liability of the common carrier of goods. 13 "Wend. 629.

The second request submitted by defendants’ counsel, was, “That unless the death in this case was caused directly and primarily by some wrongful act or omission on the part of the defendants, as such common carriers of passengers, the defendants are not liable for such death, and the plaintiff cannot recover;” which, was given by the court, and the plaintiff excepted. If we are to construe this instruction as meaning that the defendants were liable only for the immediate results of their acts or omissions, as distinguished from the consequential results of such acts or omissions, and that the defendants are not liable, although the death may have been the consequence of their act or omission, it is clearly wrong. This term “directly,” however, is sometimes used in this connection, in the sense of proximately, 46 Penn. R. 164, and with this signification is correct. Therefore, unless there is something in the case to show that injury has resulted to the plaintiff from the charge given, we do not feel at liberty to disturb the verdict on this ground, inasmuch as the plaintiff could have had the instruction made more definite by a distinct request.

The fourth request submitted by the defendant was as follows : “ If the said death occurred after the passengers and stage were in possession and charge of the ferryman, or while they were in such possession and charge, the defendants are not liable ;” which was given by the court, with the following qualifications : “ that if they were in the ferry-boat, and the accident occurred by negligence of the ferryman without participation of defendants, they are not liable;” to which, as given, the plaintiff excepted. There is no doubt it was the intention by this- instruction, to charge the jury- that the ferryman was not the agent of the defendants, and that they were not liable for his acts in the premises; that as to the plaintiff, the responsibility of the defendants and the ferryman were entirely distinct, and so the jury evidently understood the charge of the court, for after retiring for deliberation, they returned into court, and in response to a question by the judge, a member of the jury said, “ the jury are in doubt as to when the liability of the ferry company attached.”

We think the court erred in the instruction given. The defendants were a stage company, and common carriers of passengers from La Crosse to St. Paul. The plaintiffs’ intestate was a passenger, having engaged and paid the usual fare for one seat and passage in the coach from La Crosse to St. Paul; the ferry at which the accident occurred is on and constitutes part of the route taken by the defendants in this instance between these termini; the ferry is not owned by the defendants, but they pay their ferriage, and the coach in fact passes over the ferry. The contract between the stage company and the passenger is for the entire route from one terminus to the other; there is no notice to the passengers of the intervention of any other carrier than the stage company; the contract clearly embraces the entire distance between the termini; another route exists which might have been taken by the defendants, and by which the- ferry might have been avoided. Under this state of facts, as to the passengers, the ferry company are the employees and agents of the defendants, and the latter are responsible for the acts of the ferryman or ferry company, as for any other of their employees or agents. McElroy and wife v. Nashua & L. R. Corp., 4 Cush. 402; Hooper v. Wells, Fargo & Co., 27 Cal. 11" court="Cal." date_filed="1864-07-01" href="https://app.midpage.ai/document/hooper-v-wells-fargo--co-5435658?utm_source=webapp" opinion_id="5435658">27 Cal. 11, both opinions; Campbell v. Perkins et al., 8 N. Y. 433; Fairchild v. Slocum, 19 Wend. 331; Weed v. S. & T. R. R. Co., Ibid. 537; Story on Bailments, Sec. 538.

The remaining instructions are involved in the determination of those considered. The order granting a new trial is affirmed.