97 Mass. 361 | Mass. | 1867
This is an, action of tort to recover damages for injuries sustained by the plaintiff while a passenger on a steamboat belonging to the defendants and managed and navigated by their servants, from the falling upon his head of a small boat hung on the larboard side and over the lower deck of the steamboat, through the alleged negligence of the defendants and their servants in the manner of hanging this small boat and in not preventing other passengers from getting into it.
The general principles of law by which the liability of the defendants is to be tested are well settled. A carrier of passengers for hire is not, like a common carrier of goods, an insurer against everything but the act of God and public enemies. He is not held to take every possible precaution against danger;
If the carrier fails in his duty, he is responsible for the consequences of his negligence, although the negligence or misconduct of a third party contributes to the injury. Eaton v. Boston & Lowell Railroad Co. 11 Allen, 500. He is as much bound to guard against the results of the acts of third parties as of any other cause the operation of which he can reasonably anticipate. Thus in McElroy v. Nashua & Lowell Railroad Co, 4 Cush. 400, the proprietors of a railroad were held liable for the careless management of a switch, forming part of their road, by the servant of another corporation owning a connecting road, Decause, in the words of Chief Justice Shaw, “ as passenger carriers, the defendants were bound to the most exact care and diligence, not only in the management of their trains and cars, but also in the structure and care of their track, and in all the
In the present case, the defendants were bound to see that their officers, agents and servants, used the utmost care and diligence in keeping the steamboat constantly provided with suitable machinery, boats and appurtenances, and competent officers and crew, in controlling and managing the use of the vessel and appurtenances, and in making all the arrangements necessary to secure the passengers against any danger which might reasonably be anticipated from the action of the winds and seas, of the officers and crew, or of other passengers. They were not indeed responsible for the negligent or wrongful acts of the passengers to the same extent as for those of their own officers and crew. But they had the power to make reasonable regulations as to the places which passengers might occupy and as to their conduct while on board. And they were bound to use the utmost skill and care of prudent men in taking precautions to prevent any passenger from being injured by the ignorant, negligent or reckless acts of other passengers.
As to the larboard boat, the fact that it was hung in the place in which it was by order of the government inspector did not protect the defendants from responsibility for negligence in the manner of hanging or using it. They were still bound to use the utmost skill and care, consistent with the nature and extent
It was argued for the defendants that the evidence showed that they had exercised the requisite degree of care, by hanging the larboard boat in as inaccessible a place as was consistent with readily lowering it in case any of the passengers or crew should fall overboard, by providing it with tackle, bolts and fastenings of the best quality and of sufficient strength to bear the weight of as many persons as it would accommodate, by guarding it with a rail around the promenade deck, and by establishing roles prohibiting passengers from going into the boat or outside the rail. But whether the defendants had in these or other respects omitted any precautions which might reasonably be required of them was a question of fact. It does not appear by the bill of exceptions that all the testimony is reported, or that the objection, taken at the argument, that all the evidence introduced was insufficient to warrant the jury in finding that the defendants had been negligent in any particular, was made at the trial. Upon the case as now presented, no opinion can therefore be properly expressed by this court upon that question.
If the plaintiff himself was wanting in ordinary care, and without such negligence on his part would not have been injured, even if the defendants were also negligent, he certainly cannot recover. But upon the question of his negligence the
The question put by the defendants to one of the witnesses-, whether in his judgment the larboard boat was not manifestly to the discernment of passengers of common understanding an inappropriate place for passengers to be in, was rightly excluded, as asking for an opinion upon a subject which did not require any peculiar skill or experience to judge of, and which, so far as it was material, was to be passed upon by the jury. Perkins v. Augusta Insurance & Banking Co. 10 Gray, 312.
Evidence that passengers had been in the habit of sitting in the larboard boat so frequently and during such a period of time before the accident that the officers of the steamboat must have known of it, was admissible as tending to show their knowledge of that fact, and therefore competent upon the question whether they took proper precautions to prevent any danger which might reasonably be anticipated from such occupation. It would not, however, necessarily snow that they had any reason to suppose that such occupation would be dangerous.
But evidence of the disregard by passengers of the rules of the steamboat in going outside of the rails in other parts of the vessel, into the starboard boat, or upon the hurricane deck, had no tendency to show a use of the larboard boat by the permission or with the knowledge of the officers in a manner dangerous to other passengers. The starboard boat was nearer to the railing and more firmly supported than the larboard boat, and evidence as to the use of the one had no legitimate bearing upon the qhestion of the use of the other. If the case had been left as :‘t originally stood upon the admission of evidence of the use of both boats and the hurricane deck, it might be doubtful whether the incompetent evidence had been so distinctly objected to at the time of its admission as to entitle the defendants to a new trial. But it further appears that, on the subsequent motion of the defendants, the presiding judge refused either to strike out the incompetent evidence, or to instruct the jury to disregard it, or even to instruct them that the fact of passengers having disregarded the rules of the steamer in respect to the starboard
Having already stated the general rules of law applicable to the case, it does not seem to us to be necessary or useful to examine in detail the other instructions given or requested.
Exceptions sustained.
This case was argued at Boston, in January 1868, before all the judges.