8 Ind. 1 | Ind. | 1856
Allen was the plaintiff below, and Porter the defendant. The complaint charges that on the night of the 12th of September, 1853, the plaintiff was running his flatboat, loaded with lime, down the Ohio river, in the usual channel; and that when a short distance below Gannelton,on the Indiana side of the river, the boat was
The record contains the evidence. It shows that in the spring of 1853, a large log floated down said river, and lodged about seventy-five feet from the shore, near the landing and coal railway of the defendant; that during low water the log interfered with his landing, and also threatened the destruction of his coal slide; and that in June, 1853, a steamboat, by the defendant’s dii’ection, was hitched to the snag, and attempts were made to haul it ashore, but the lines not being strong enough, having parted several times, he caused it to be hauled out six hundred feet from the shore on a bar, about fifty yards from the channel, where it was left; that afterwards it floated down seventy-five- feet below the place where it was left; that the bar is a gravel one, commencing a half a mile above, and continuing about one hundred yards below, the defendant’s landing, and has been there five years. It was further shown that, on the night of the 14th of September, 1853, as the plaintiff’s flatboat was going down the river, loaded with lime, it struck the log and sank, — when, if there had been no obstruction, the boat would have gone through safely; that the rivei’, at the time of the accident, had risen between four and five feet from its lowest
“ Ordinarily, every person is bound to use reasonable care to avoid or prevent danger or damage to his person or property. "Wherever, therefore, the injury complained of would never have existed, but for the misconduct or culpable neglect of the plaintiff, .........he cannot recover, but must bear the consequences of his own fault.” 2 Greenl. Ev. s. 473. This we regard as settled law. In the case before us, the plaintiff was not entitled to a verdict, if he was in fault by the improper management of his boat, and by ordinary care might have avoided the injury. Butterfield v. Forrester, 11 East, 60. — Smith v. Smith, 2 Pick. 621.
But the inquiry whether the plaintiff had used ordinary care, was fairly before the jury:' it was their business to judge of the evidence, and it is not for this Court to disturb their conclusions, unless they are manifestly unsupported by the proofs. It is alleged in the complaint, but not proved, that “the boat, at the time of the loss, was in the channel of the river.” Indeed, the proof is that it was not in the channel when the disaster occurred. That allegation, however, was not material; nor was the proof, of itself, sufficient to establish want of care. The Ohio river is a common highway, and its character in that respect is not restricted to what may be called the channel. "We are not inclined to hold that persons navigating that river may not, without incurring the fault of culpable neglect, run their boats outside of the channel, in water sufficiently deep to carry them along safely. True, the weight of evidence seems to be that boats passing down the river usually run in the channel about one hundred yards from the place where the boat sank. There were, however, three witnesses who testified that they had repeatedly seen flat-boats
The next inquiry relates to the removal of the log. Being an obstruction to the defendant’s business, and dangerous to his property, he had an undoubted right to remove it; but in the exercise of such right, the law would not allow him to leave the removed log, at a place in the river, where it would be likely to endanger the property of others.
In addition to the instruction already noticed, the defendant asked the following: 1. “If the defendant was obstructed in the use of the river at his landing, by the log which had floated there since he commenced occupying and using said landing, and his property was endangered by it, he had a right to shove it out so that it could float off, and the plaintiff cannot recover. 2. If the defendant used ordinary care in placing the log upon a bar where it is not usual for laden boats to run he is not liable.” These instructions-were refused, and, we think, correctly. The defendant may have “ had a right to shove out the log so that it could float
There is a question raised as to the damages. The boat was worth 125 dollars; and there were 712 barrels of lime, which cost, delivered on the boat, 56 cents a barrel. Two witnesses testified that the lime was worth 75 cents, another, 75 or 80 cents per barrel, and there was evidence tending to prove that the boat and cargo were worth 600 dollars. It is contended that the prime cost of the lime and the value of the boat, were the true measure of damages; and that the jury having failed to
The judgment is affirmed, with 2 per cent, damages albd costs.