89 Pa. 31 | Pa. | 1879
delivered the opinion of the court, May 5th 1879.
A collision occurred on the afternoon of the 3d of July 1876, between the steam collier “Leopard,"’ belonging to the defendants below, and a row-boat in which there were four young men, of whom Frank Adams, the son of the plaintiff below, was one. The steamer was going down the Delaware river, on an ebb tide, at a rate of speed variously stated as from eight to twelve miles an hour. The boat was near the middle of the river, between the city of Philadelphia and the New Jersey shore, when the steamer approached it. Two of the men in it, one after the other, went into the water to swim. John Trapp was swimming when the steamer wras first seen. From this point the testimony was conflicting. That of the plaintiff was to the effect that when the steamer was within fifty or sixty yards of the boat the men in it tried to get away, but could not do so on account of the tide. That of the defendants tended
In the second point of the counsel for the defendants, the court were asked to charge : “If the jury believe that when the boat in which the men were was first seen to be in the steamer’s way, the captain of the steamer whistled and changed his helm, and successively stopped and reversed his engine, this was all he was bound to do, or could do, to avoid collision, and although the steamer, whether from her momentum or from the tide, may not have been able to stop still before reaching the boat, the defendant’s servants were not for that reason negligent, and the verdict should be for the defendants.” The point was peremptorily refused. It was defective, perhaps, in the absence of a single qualification. The plaintiff had alleged in part of her case that the captain had not kept an adequate lookout. In connection with the answer to this point, it is necessary to examine the grounds of other errors assigned by the defendants. The jury were instructed in the answer to the plaintiff’s tenth point, that “if the steam vessel had a proper lookout and a man at the wheel, they were bound to have seen the sailing boat in their path, and if they did see it and continued on their course without changing or stopping the vessel, it is evidence of negligence on their part,” subject to the qualification, “if the jury,” in the language of the court, should “find the facts mentioned contributed to the accident.”
In answering the plaintiff’s twelfth point the court ruled that “ if the steamer did see, or ought to have seen the sailing boat in time to avoid the collision, and did not avoid it, she was guilty of negligence, and the verdict should be for the plaintiff.” The thirteenth point, that “ if the steam vessel did see, or could by a proper lookout have seen the row-boat a square off, and if that was distance sufficient to allow her to change her course, or stop so as to avoid collision, she was bound to do so, and failing to do so, she was guilty of negligence;” and the fourteenth point, that “the effort to stop the steamer, if not made soon enough to be successful, if she saw or ought to have seen the row-boat, will not excuse such negligence,” were also affirmed. The errors in which these rulings
Were the men in the boat within the protection of the “ Steering and Sailing Rules” embodied in the navigation laws of the United States ? That as between a steamer and a sailing vessel, the steamer shall give way and the sailing vessel shall keep its course, and that as between sailing vessels, one that is going free shall give way to one that is close-hauled, are regulations corresponding with well-settled regulations for the use of public highways on the land. Rut does a steamer owe any such duty to a row-boat ? As usually equipped and manned, such a boat is moved with greater facility and is more within the control of the crew than the steamer itself. The collier of the defendants was in the channel of the Delaware for the purposes and in the prosecution of a lawful business, and had the right, in absence of conditions creating duties to others, to maintain its course. Ordinarily, the crew of a row-boat can remove it from the track of danger by a movement or two of its oars, and in scarcely an appreciable interval of time. The captain of a steamer passing down the channel would have the right to assume that the boat would be equipped in the usual way, and that the ordinary precautions would be taken and the ordinary movements made. A crippled condition of the boat, inadequate appliances, or the inability of the crew to escape collision, shown to have been- known or apparent to the captain, would change his relations and responsibilities at once. But is it possible that the bare fact that the boat was in the channel required that the course of the steamer should be altered or its speed checked before it became manifest that the danger of collision was .impending ? Principles have long been settled which are inconsistent with those under which this cause was tried. It was declared in Cobb v. Bennett, 25 P. E. Smith 326, that a vessel may hold her course in a navigable stream without regard to a fisherman’s net, if the master acts without wantonness or malice; and that while the right of fishery is acknowledged, it is subordinate to the right of navigation. In Beach v. Parmeter, 11 Harris 196, damages were claimed for injury to the leg of a horse produced by collision with a buggy which, in passing the horse, kept its course in the beaten track of the highway. It was said in the opinion here that “ where a road is narrow, and there is difficulty in passing, if a horseman can turn out without danger to himself or beast, and the buggy cannot be turned
In the fourth assignment of error complaint is made of the affirmance of the plaintiff’s sixth point, “ that the accident which will excuse the party who committed the injury must be such inevitable accident, as human foresight, under the circumstances, could not have prevented.” Just how deeply into the minds of a jury such an instruction might have struck, can only be conjectured. It was an unfortunate use of terms, although their misleading tendencies may have been modified by the qualifying phrase “ under the circumstances.” The jury would have been warranted in rendering a verdict for the defendants, if they had found that the “accident” had occurred notwithstanding the careful, prudent and energetic use of all needed appliances by competent, earnest and faithful officers. To hold one whose act has injured another, excusable only when the “accident” was one which the keenest human intelligence could not anticipate, w'ould be to carry the law of negligence far beyond the rule which demands due skill, prudence, care and diligence proportioned to the requirements of a particular emergency. In Beach v. Parmeter, supra, the president of the Common Pleas had charged that the defendant was not liable “if the collision was entirely accidental,” and if the injury was “the result of the accident.” It was said here, in affirming the judgment, that the judge “must have meant inevitable accident, such as no human foresight could avert.” Applied as the words were in that case and to its circumstances, they could, perhaps, neither help nor hurt, but it is believed that as a formula for the instruction of a jury, its adoption would prove to be always unsafe.
In the plaintiff’s twentieth point, the measure of damages was defined with accuracy, and the point was affirmed. But in the
Without detailed reference to the fifteen assignments of 'error, what has been said covers the essential points of controversy in this cause, which are believed to have been improvidently determined.
Judgment reversed, and venire facias de novo awarded.