2 Vt. 92 | Vt. | 1829
The opinion of the Court was, at a subsequent period, delivered by
There are two exceptions, only, in this case ; one relates to the charge upon the merits of the action ; the other to the instructions when the jury came in not agreed. We will dispose of this first. The defendant requested the Court to charge the jury, that, if they doubted about the fact, they must find for the defendant. This the Court refused; and correctly too, as this Court adjudge. We so charge in criminal cases, because it is the law that we should so charge; and because that law is as it should be ; for no man should be convicted of a crime, while the jury entertain any rational doubt of his guilt. But it is not so in civil causes. The law is not so : neither is it prac-tised in any Courts whatever. The doubling oi the jury, in a civil cause, may be a good reason for receiving back the papers, and letting the cause stand over for another jury to try ; but is no reason for directing a verdict for the defendant. Where the testimony is all on one side, the jury cannot find for the party holding the affirmative, until they believe the facts proved : and so they are always charged by the Court. Therefore, the Court’s saying to the jury, if you believe this, you will find for the plaintiff ; otherwise, for the defendant, is all to which the defendant is entitled, in such a case. This finding must be on the preponder-ancy of the testimony, and not on such a freedom from doubt as required in a criminal case.
We pass to a consideration of the charge upon the merits of the case. The defendant’s counsel place the main force of their exception upon one expression in the charge, to wit, “ a flaw of wind unheard of, or such as rarely occurs.” Were we to give as . . J ° great emphasis to this expression as do the defendant’s counsel, and take the same so disconnected from what follows, as they do, we should find difficulty in reconciling the charge to the principles of law. At the same time, it cannot escape our notice, that the charge gives the cause to the defendant, if the jury should find that the wind which upset the boat was either of the two named, to wit, a wind unheard of, or one that rarely occurs. But, when we read what follows in the charge, we there find a very explicit instruction upon what ground they might find for the plaintiffs. And all those grounds require evidence of a fault or neglect in the defendant; and exclude every thing that might be considered the act of God. The court in pointing out on what grounds the plaintiffs may recover, first describe the duty of the defendant in executing his trust; that he should so lade and navigate his boat that he could go safely when meeting nothing but the ordinary occurrences of the voyage; then tell the jury that, if the defendant put too much load upon his boat, or imprudently placed too much upon deck, or navigated with too much sail, and that, the wind, which upset the boat was only such as was common, and might reasonably be expected during the voyage, they ought to find for the plaintifis. This was, also, the concluding part of the . instructions given, when the jury came into court for further instructions. The counsel have not contended but that the defendant’s liability’' stood upon the principles of a common carrier. It should so stand. He carries for hire. The plaintiffs could not controul him in the manner of lading and navigating bis boat. They cannot be supposed to have felt it their business to ascertain when he slopped lading, upon his boat, the property of others to increase his load; nor can it be supposed that the plaintifis had skill to decide upon those matters which the defendant must know and do at his peril. All must be at the risk of the defendant, so far as any imprudent act of his occasioned the loss.
The jury could not have been misled by the instructions given. If the wind was unheard of, or was one that rarely occurs on the lake, they must have considered the loss as occasioned by the act of God. If several other things concurred ; if the wind was only such as, from its frequent occurrence, might reasonably be expected, and the boat was badly laden, or badly navigated, they might consider the loss as occasioned by the fault or neglect of the defendant. The judgment of the County Court must be affirmed.
Judgment affirmed,
