74 F. 503 | 5th Cir. | 1896
The action, as shown by the pleadings in the court below, was trespass on the case, for the recovery of damages in the sum of f>3 5,000 for personal injuries caused by the negligence of defendant below, the Plant Investment Company. In the declaration, plaintiff below alleges, substantially; That the Plant Investment Company was in the full, unrestricted possession and control of certain wharves, known as the ‘Tort Tampa Docks,”
During the progress of the trial a number of exceptions to the ruling of the court below were taken, and, in aid of them, it appears that all the testimony administered by either party to the juiy is brought up in the record. The transcript shows 31 assignments of error presented by plaintiff in error. The plaintiff in error’s brief shows 25 specifications of error relied upon. The first 2 specifications relate to the ruling of the court on the plea of jurisdiction, and the general demurrer to plaintiff’s declaration. We think there was no error on the part of the court below shown therein. The assignments from the second to the eighth, inclusive, relate to the errors of the court below admitting, over the objections of the defendant, certain testimony to the jury. It may be that some of that testimony was erroneously admitted, but it was not of serious importance, in the view we take of the case. The tenth assignment comes under what we have just said above. In considering the ninth assignment, we think that the plaintiff, under the allegations averred in the declaration, as well as in the testimony offered by either side, should have stated her age to the jury, so they 'might have taken that fact into consideration with all the other evidence in the case; the failure of
In order to discuss plaintiff in error’s exceptions to the charge of the court, as well as to consider the assignments of error on the refusal of the court to give certain instructions, we will quote them as paragraphs, numbering them 1, 2, 3, from the court’s charge, and from the instructions asked, which we think were improperly refused.
(1) The court below charged that:
“The defendant has alleged in its plea the contributory negligence of the plaintiff. This must be such negligence as a person of ordinary care and prudence would not be guilty of when in the exercise of such prudence.”
(2) Court’s charge:
“If you find from the evidence that the slip over which the plaintiff was passing to the steamer upon which she was to take passage was not in an ordinarily safe condition, on account of any slippery substance, and on account of that unsafe condition the plaintiff was injured, you will find for the plaintiff.”
(3) Charge refused:
“If the jury believe from the evidence in this case that said sand was sprinkled on the slip, and that cleats were nailed on the slip for passengers to walk on, and that a gangway or staging was provided for passengers to walk on. and that either or all of these three things were all that those having charge of the wharf were bound to do, in the exercise of ordinary care, to prevent passengers intending to go on board the vessel alongside oí the dock from falling, then the jury must find for the defendant.”
We think the first paragraph quoted from the judge’s charge shows error which may have been misleading to the jury, — not in what it says, but in failing to give a more comprehensive definition of contributory negligence. The inquiry of the jury, of paramount importance, as it appears to ns, in rightfully determining the issues of fact submitted to tbem, should have been directed primarily by the court to ascertaining out of, or in, or to what actions, whether of the plaintiff or defendant, the proximate cause of the injury to the plaintiff should he implied or charged; so that the jury, having ascertained from or in what acts of either party the proximate cause sprung or inhered, could apply the law given to them by the court to the facts showing such said acts, and determine whether or not negligence was thereby established against either side, and, if established against the defendant, whether or not the acts of plaintiff contributed thereto. It may be that the plaintiff in error’s complaint of error therein cannot be rightfully lodged against what was said by the learned judge in the first paragraph quoted from the first charge of the court, but we think the definition therein given by the court of contributory negligence may have been misleading, because it may be that some things were left unsaid therein which, in aid of the jury in making the inquiry we have suggested above, might well have been said by the court below. 1 Beach, Contrib. Neg. § 7, says:
“Contributory negligence, In Its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as.*506 concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence, ¡.here must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury. Perhaps, besides these two, there are no other necessary elements. Certainly they are the two points of difficulty in the consideration of the question.”
Tlie second paragraph quoted from the judge’s charge we think is subject to something of the same observations we have made as to paragraph No. 1. Stated as such charge was by the court, we •think it was misleading, because it states too broadly and unconditionally the conditions of fact upon which the jury should find peremptorily for the plaintiff, and that the said charge lacks such modifications or qualifications as we think the court, under the facts, should have given to it We can more tersely indicate our view of the qualifications which we think the court below should have added to the language of the second paragraph by stating the charge as we suggest it should, substantially, have been, under the facts, given to the jury:
If you find from this evidence that the slip over which the plaintiff was passing to the steamer, upon which she was to taire passage, was not in an ordinarily safe condition — (such as the nature of the commercial business, shipping, etc., for which the slip, necessarily, was being daily used by the defendant company, as should or would be reasonably required for the safety of passengers going aboard of its steamers) — because or on account of any slippery substance being thereon; and you find that such condition, if faulty, in the sense of legal negligence, was chargeable to the defendant company; and you further find from the evidence that such slippery substance, being on said slip, was the proximate cause of the injury to plaintiff, and that the plaintiff, at the time of her injury, was not guilty of contributory negligence, —then you should find for the plaintiff.
It appears to us that if the jury had found that the evidence showed all the conditions, and no more, that were stated in the second paragraph of the judge’s charge, the defendant would not necessarily have been liable, under such condition of facts. To hold a defendant liable for damages in a suit like this, the state of case must show such a faulty condition of things on the part of defendant as amounts, in law, to negligence; that such negligence is chargeable, in law, to defendant; that the proximate cause of the injury inhered in, and sprung out of, that negligence; that the plaintiff was free from contributory negligence. Applying such views to the facts in this case, we think the charge recited in the second paragraph was misleading, because it stated too broadly and unqualifiedly the liability of the defendant. It is true that the paragraph No. 2, quoted above, is followed in the court’s charge by the following paragraph, favorable to defendant:
“If you find from the evidence that the slip was in an ordinarily safe condition, to one exercising ordinary care and. prudence, and that the injury resulted either from a lack of ordinary care and prudence on the part of plaintiff, or from any unforeseen and unavoidable circumstance, you will find for the defendant.”
This paragraph contains a statement, broadly made, in favor of the defendant; but we do not think that, if we read both of the paragraphs together, the objections which we have pointed, out against
Upon the third paragraph showing a refused charge, the transcript shows there was testimony to the effect that the things therein stated on behalf of the defendant, or some of them, had been or were done by defendant company, to wit: There was a place on the slip leading to the steamer where there were cleats nailed down to walk on, and there were some places on the incline of the wharf or slip where sand had been sprinkled. The matters therein to which plaintiff in error sought to have the jury’s attention especially drawn were not covered in the charges of the court. Such evidence might have shown to the jury that the defendant company, under all the circumstances attending its business as a common carrier, in receiving and discharging all sorts of merchandise, freight, etc., on the said slip and dock, may have had its wharves and dock in such condition for safety to persons taking passage on their steamers as it should have had, under all the circumstances, in the discharge of its duty to such persons or to the public.
We think there was error in the matters referred to in the court’s charge, and in refusal to give the instruction asked for by plaintiff in error, quoted by us as paragraph No. 3. The judgment of the circuit court is reversed, and the cause remanded for a new trial.