Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co.

100 Mass. 34 | Mass. | 1868

Foster, J.

1. When this cause was previously before the court, we held that the habit of the passengers to get into the starboard boat was inadmissible to show that a similar use of the larboard boat, the falling of which caused the accident, was known to or permitted by the officers of the steamboat. At the last trial, the plaintiff asked one of his witnesses whether he saw any passenger in the starboard boat on the trip when the accident occurred. This question was objected to by the defendants, but admitted by the court “ as tending to show the crowded state of the boat.” We cannot perceive that it had any such tendency. It does not seem to have been a part of a general description of the number of passengers, the parts of the boat which they filled, or its condition in respect to being crowded. It was apparently a single, distinct question, intended to show that one or more passengers did occupy the starboard boat, and, when introduced in such a manner, it would seem to be obnoxious to the same objection which induced the court once before to grant a new trial because of the admission of nearly the game kind of evidence. If this were the only objection to the present verdict, we certainly should pause and scrutinize it carefully before allowing the verdict to stand; because we are apprehensive that it may have operated unintentionally as an evasion of our former decision. But our conclusions upon another point have rendered the precise determination of this one unimportant.

2. The offer to show the instructions given to the boat-builder by whom the small boat was constructed would have been admissible, if they related to the particular in which the alleged defect consisted, viz: the strength of the bolt the breaking of which caused the accident. Upon the question whether the corporation had been negligent in allowing a bolt to be put into the small boat of insufficient strength, it could be shown that directions were given to have the particular bolt of the best kind and of sufficient size, or that general orders were given to have the materials all of the safest kind. The fact that thoroughness and carefulness in all respects had been directed to be used in the construction of the small larboard boat was competent evidence to rebut the charge of negligence. But it may be doubtful whether the defendants pointed out to the presiding judge the object of their proposed inquiry sufficiently to entitle them to a new trial for the rejection of this offer of proof.

3. One instruction actually given was palpably erroneous, and, taken separately, is conceded to have been so, by the plaintiff’s counsel. The learned judge called the attention of the jury to “certain testimony tending to show that on several occasions passengers had been seen before the accident riding in the larboard boat, and the jury were instructed that if the defendants knew of this, or might with proper vigilance have known of it, and if the jury were satisfied that the fastenings of the boat were not sufficiently strong for a boat liable to be used for such a purpose, and that the defendants knew that it vas liable to be so uséd and made the fastenings no stronger, they would be liable.” This would not be true unless the defendants knew, or by due diligence might have ascertained, or had reason to believe, that the fastenings of. the small boat were insufficient in strength. The jury were allowed to hold the defendants liable if the fastenings were in fact not strong enough, although the defendants might have had no notice of their weakness, no reason to suspect their insufficiency, and even although it could not have been detected or ascertained by the utmost care and skill. But it is said that the confessedly essential qualification was inadvertently omitted from this part of the instructions; that the omission was supplied by other parts of the charge; and that, taking the whole together, the true rule was laid down, and the jury could not have been misled. If we could see this, we certainly should not disturb the verdict merely because each sentence or paragraph did not by itself contain all needful qualifications and limitations, a thing rarely to be found in the most careful and accurately written compositions. In a previous part of the charge, the jury had been told, in general terms, “ that the injury must have been occasioned by the negligence of the defendants.” But this general statement did not in our opinion practically compensate for the defect in that portion in which their attention was specifically directed to the strength of the bolt. The other rulings reported are statements of the extent of skill and care required of the defendants as common carriers, but do not define the limits thereof. In making them, the mind of the court was apparently occupied in declaring how far the liability would go, rather than where it would stop. They were unobjectionable, but not calculated to correct the effect of the erroneous ruling that has been pointed out. Of this character was the statement that the defendants were bound to use the utmost care and skill in arranging and suspending the boat so as to guard against such careless and reckless acts of passengers au could reasonably be anticipated. But, when the court came to make a statement of the limits of the defendants’ responsibility in this respect, the language used was, that, if the boat had been so arranged and secured as to be sufficient for any exigency which the defendants could reasonably have anticipated, then the plaintiff could not recover unless something had subsequently occurred within the knowledge of the defendants requiring an increase in the strength of the fastenings. This statement makes the mistake of setting up as the standard actual sufficiency of strength in the fastenings for all exigencies to be anticipated. And it certainly had no tendency to correct the serious error already pointed out, which is contained in the next sentence. Where one erroneous statement of the law has been made, we cannot refuse to sustain an exception, unless it clearly appears . that no injury resulted. Greene v. White, 37 N. Y. 405. The eighth prayer for instructions made by the defendants was refused, and it related to the very point in which the ruling we are now commenting upon appears to have been defective. We are far from satisfied that the general statement of the doctrine that the defendants were liable only on the ground of negligence was sufficient to prevent the jury from being misled by the express announcement of a rule more stringent than the law imposes on carriers of passengers. This exception must therefore be sustained, and a new trial becomes necessary.

4. The question, whether there is any such evidence of negligence as would warrant a jury in finding a verdict against the defendants, remains to be disposed of. The principles upon which a question of this description must be determined are familiar, but their application is often very difficult and imposes on the court one of the most delicate and responsible duties it can be called upon to perform. At the next trial the evidence may not stand precisely as it did at the last. We therefore for the present forbear to express any opinion on this topic.

Exceptions sustained; new trial at the bar of this cowt.