46 Me. 400 | Me. | 1859
The opinion of the Court was drawn up by
This is an action on the case, founded upon a collision between the plaintiff’s schooner Hiram, and the defendants’ steamer Admiral, which occurred in a fog, upon Passamaquoddy Bay, in a thoroughfare leading into the harbor of Eastport.
It is not denied that the Courts of common law have a concurrent jurisdiction with Courts of Admiralty in cases of this kind. If, however, a party elects the common law remedy,
In the case before us, the general instructions which were given, so far as they went, are such as, under the finding of the jury, the plaintiff has no ground to complain of, nor does his counsel now raise any exceptions thereto. It may, perhaps, be found that the rule laid down by the presiding Judge in cases of mutual fault or negligence is the rule of the maritime code, and not of the common law. It is said by Parsons, in his work on Mercantile Law, p. 383, note 1, that “ in Courts of common law, if both parties are in fault, the loss rests where it falls;” and the cases, Vennall v. Garner, 1 Crompt. & Mees., 21, Rathburn v. Payne, 19 Wend. 399, Barnes v. Cole, 21 Wend. 188, Simpson v. Hand, 6 Whart., 311, and Kelly v. Cunningham, 1 Cal., 365, are there cited to sustain the doctrine. In addition to these cases, we refer to Carsley & al. v. White, 21 Pick., 254, in which Shaw, C. J., instructed the jury that, “ in case of collision, either at sea or in a harbor, to enable the plaintiffs to recover, it must appear that the accident was not caused by any negligence or want of skill on their part,” and the correctness of this instruction appears to have been affirmed by the full Court. If, however, the presiding Judge, in the case before us, was in error in supposing the common law rule to be the same as that which prevails in Courts of Admiralty, the verdict cannot be disturbed for this cause, inasmuch as such a rule is more favorable to the plaintiff than to the other side, and the jury, under such instruction, must have found that, whether the plaintiff was in fault or not, the defendants, and those for whose acts they were by law responsible, were not. Under such circumstances, there is no ground upon which the defendants can be held liable.
It appears, however, that the Judge was requested to instruct the jury, “ if they should find that the persons in charge
Our inquiry then is, is this requested instruction in accordance with the principles of the common law ? It by no means follows that such is the common law, even if it should appear that Courts of Admiralty and maritime jurisdiction have decided that proper care and prudence require that, under similar or the same circumstances stated in the request, it was the duty of a steamer to blow her whistle or ring her bell. The law by which such courts are controlled may have its precise rules, by which to determine with accuracy a question of duty or fault, and by these rules the judgment of such courts may be bound. These rules may be such as commend themselves to judicial wisdom, and yet be no part of the common law. The rules of navigation and the usages of the sea, although they are important to be observed, and the neglect of them may go far to show a want of care or skill, are not regarded in this country, in our Courts of common law jurisdiction, so positive in their nature as to bind masters or owners, in all cases, with the force of law. Parsons’ Mercantile Law, p. 384 and 385. These technical rules or usages of the sea as established or recognized by the maritime law, are important facts to be presented to a jury, without which it might be very difficult for them to determine whether due care and skill in most cases had been exercised, or not; but they are not rules of the common law, and cannot properly be given to the jury as such.
At common law, whether due care has been exercised or negligence exists is ordinarily a question of fact, depending
It is the boast of the common law that questions of fact are for the jury, while the law only is for the Court. The common law scales by which the evidence is to be weighed, in cases like the one before us, is a jury of the vicinage, and their intelligence and honesty are to be the watchful guardians of the beam. Especially is the question for the jury in a case like that involved in the requested instruction before us. What common care and prudence required of the plaintiff, and- of the defendants, at the time of the collision for which this suit was brought, and what amounted to negligence, depending, as it did, upon a great variety of facts and circumstances apparent in the case, was wholly for the jury. If the requested instruction had been given, the province of the jury would have been invaded. It is not the right of a party, in cases of this kind, to seize upon one, or two, or more of the facts bearing upon the question of fault, and ask the Court to rule upon their weight as evidence, or their effect. The question of fault in the persons having charge of the steamer depended, in some measure, upon many other circumstances disclosed in the evidence beside those stated in the request,
This case is not very much unlike the case of Carsley & al. v. White, before cited, 21 Pick. 254, in which it was held that whether common care and prudence required of the plaintiffs to have a light on their deck, and the omission to have it, amounted to negligence, must depend upon the darkness of the night, the number and situation of the vessels in the harbor, and all the other circumstances connected with the transaction, and that this was a question of fact within the province of the jury. The requested instruction was therefore rightly withheld.
Our next and only remaining inquiry is, whether the verdict is against evidence. Each party put in such evidence as was deemed desirable. The instructions to the jury were not unfavorable to the plaintiff, and none which were requested and could properly have been given were withheld. Able counsel upon both sides undoubtedly gave to the jury all the light which the rules and usages of the sea and the evidence before them could throw upon the case. The place of the collision, the deceptive nature and density of the fog at the time; the number and frequency of the vessels passing in the waters or thoroughfare where the steamer and schooner met; the speed with which each was moving, and their direction
Exceptions and motion overruled.