19 Mo. 557 | Mo. | 1854
delivered the opinion of the court.
This being a case in which there is a verdict, our task is limited to the examination of the instructions given and refused,- and to the points of evidence raised on the trial. Although the rules by which we are governed restrain us from inquiring into
Upon the whole case, the custom in regard to signals by bells was made, by the instructions given for the defence, to assume a greater importance than it merited. Although there was evidence which warranted the hypothesis contained in the defendant’s instructions, in relation to the custom of giving signals by bells, yet the weight of the testimony, if credited by the jury, was sufficient to show that the custom had no great deal to do with the case. The rules, as adopted by the association of pilots of the Upper Mississippi, where this collision occurred, and as explained, tend to support this view.
The defendant, in his brief, remarks upon this instruction, “ that the court was here asked to say, without reference to custom, that if the Archer did neglect to observe an ordinary and proper means of safety, that would constitute a prima facie case of neglect at least.”
If the instruction, numbered 7-J-, had, as was supposed, merely asked a declaration from the court, that the giving of signals by bells was a proper precautionary measure to avoid collisions, whatever might have been said of it in other respects, it would have avoided the objection that it submitted a
As instructions numbered 11 and 13 had been given for the defendant, there was no error in refusing that numbered 9. Instructions numbered 14 and 15 had been previously given, in substance.
The instruction given for the plaintiff, numbered 8, standing alone, would have been open to objections., but when considered along with those given for the defendant, it cannot be regarded as erroneous, especially as the jury was directed to take all the instructions together, as forming the law of the case.
The witness, Meline, was examined as to the value of the steamboat Archer. Surely there was nothing in his deposition that could prejudice the defendant with an intelligent jury. They would only give it such weight as it was entitled to, from the manner in which he spoke. .If it was open to comment, it might have been made to the jury. There was other evidence on this point.
the judgment is affirmed.