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when, after reaching rough water, it be- 37. Burden of proof of negligence gen-
came apparent that the boat was in great erally.— Gretschmann v. Fix, 189 Fed. TIG.
danger, and she swamped, and some of 38. The Downer, 171 Fed. 571.
the passengers were drowned, the officer 39. Burden of proof of contributory
was chargeable with gross negligence, negligence or freedom therefrom.— In an
for which the ship is liable; and the con- action for injury to a ferryboat passenger
tributory negligence of the passengers, if who stepped into an open coal chute, evi-
conceded, constitutes no defense to such dence held insufficient to sliow freedom
liability, under the rule that such negli- f''0"'i contributory negligence. Weill v.
gence will not defeat the action when New York, 132 N. Y. S. 009, 147 App. Div.
it is shown that defendant might, by the 634; resettling of order denied in 133 N.
exercise of proper and reasonable care, ^- S. 290, 148 App. Div. 919.
have avoided the consequences thereof. 40. Gretscliniann v. Fix, 189 Fed. 716.



§ 4421



CARRIERS.



3998



still, under such circumstances, the mere happening of the accident is at least
prima facie evidence of negligence on the part of the carrier, and it will be
incumbent upon the latter to produce evidence which will excuse the prima
facie failure of duty on its part; or, in other words, it has the burden of prov-
ing, in order to rebut the presumption of negligence, under the circumstances,
that the accident could not have been avoided by the exercise of the highest
practical care and diligence. This rule does not change the general burden of
proof, but simply provides that when a passenger on board a vessel over which
he has no control, is injured without any fault of his own by the negligence
of the carrier in using defective and insufficient means of transportation, the
happening of the accident resulting in an injury, when proven, amounts to
prima facie evidence of negligence on the part of the carrier, and makes it
incumbent upon it to produce evidence to overcome the prima facie case thus
established.'*^ It has been so held where a passenger was injured by the ex-
plosion of a steam drum,42 by the breaking of a hawser,^^ by the breaking ot
the hurricane deck,^^ by the giving away of the cover of an opening in the
deck,^^ bv the falling of an upper berth ; ^e or by the falling of a gang plank.-*"
It has also been held where a passenger was drowned by the sinking of the
boat or breaking down of parts thereof,-*^ and where a passenger was drowned
in an attempt to transfer her to the shore. ^^

Licensees on Wharf — "Res Ipsa Loquitur." — W here plaintiff sued to re-
cover for injuries caused by the negligence of defendant or his servants, and
there was no contractual relation between the parties, the rule of "res ipsa



41. Presumption of negligence from
proof of happening of accident. — Indiana
Union Tract. Co. v. Scribner, 47 Ind. App.
621, 93 N. E. 1014.

The highest degree of care for the
safety of a passenger is required of a
ship, and where injury is sustained by
the passenger the presumption of negli-
gence is against the carrier. Pouppirt v.
Elder Dempster Shipping, 122 Fed. 983,
reversed in 125 Fed. 732, 60 C. C. A. 500.

42. Explosion of steam drum. — The ex-
plosion of a steam drum on a steamer,
by which passengers were injured, is
prima facie evidence of negligence on the
part of the carrier in a proceeding to re-
cover for such injuries. In re California
Nav., etc., Co., 110 Fed. 670.

43. Breaking of hawser. — Where plain-
tiff, a passenger on a steamship, was in-
jured by the breaking of a hawser which
was being used to dock the vessel, the
fact of injury was sufficient to establish
a prima facie case of negligence against
the shipowner. Fowden v. Pacific Coast
Steamship Co., 86 Pac. 178, 149 Cal. 151.

44. Breaking of hurricane deck. — The
breaking of the hurricane deck of a boat,
resulting in injury to a passenger who is
rightfully upon such deck, is prima facie
evidence of negligence in the carrier, but
is not conclusive evidence, and may be
overthrown or explained by evidence
showing the exercise of proper care by
the carrier. Evers v. Wiggins Ferry Co.,
92 S. W. 118, 116 Mo. App. 130.

45. Giving away of cover of opening in
deck. — When a passenger on a vessel is
injured by the giving way of the cover
of an opening in the deck, it is incum-



bent upon the owner of the vessel to
show affirmatively that there was no fault
or negligence on the part of the officers
and crew, causing the injury. The City
of Kingston, 77 Fed. 655.

46. Falling of upper berth. — The fact
that an upper berth in a steamboat falls
and injures a passenger occupying the
berth below makes out a prima facie case
of negligence on the part of the common
carrier. Horn v. New Jersey Steamboat
Co., 48 N. Y. S. 348, 23 App. Div. 302.

47. Falling of gang plank. — Evidence
that a passenger w^as injured by being
precipitated into water by the falling of
a gang plank while trying to cross on
the plank from a dock to a defendant's
steamboat is sufficient to make a prima
facie case. Croft v. Northwestern Steam-
ship Co., 55 Pac. 42, 20 Wash. 175.

48. Sinking or breaking down of parts
of boat. — When it is established that a
passenger on a boat, while being carried
as a passenger for hire, has been thrown
into the water and drowned, without his
fault, by the sinking of the boat or the
breaking down of parts thereof, the law
presumes negligence of the person op-
erating the boat. Indiana Union Tract.
Co. ZK Scribner, 47 Ind. App. 621, 93 N.
E. 1014.

49. Passenger drowned in attempted
transfer to shore. — Where a girl takes
passage on a steamboat, and is drowned
in an attempt to transfer her to the shore,
the burden of proof is on the carrier to
show thai the accident did not result
from the nult of his officers or repre-
sentative?. Le Blanc v. Sweet, 31 So.
766, 107 L I. 355, 90 Am. St. Rep. 303.



3999



CARRIAGE OV PASSENGERS.



§§ 4421-4422



loquitur" applied only where facts were shown which compelled the jury to
draw an inference of neghgence, or circumstances making legitimate infer-
ence.^*' Thus, plaintiff, an infant, standing with his mother on a pier await-
ing the arrival of a transatlantic steamship, was struck in the face by a steel
hawser, with which the steamship was being warped to the pier, caused, by the
breaking of an iron shackle with which the hawser was fastened to a mooring
post, and there was no evidence of negligence on the part of defendant, ex-
cept that arising from the sudden breaking of the hawser^ and defendant
showed that the pier was safe, had plaintiff and his mother kept within the
shelter of the pier, as they were warned to do by the defendant's servants,
and that the breaking of the shackle was not due to any negligence in handling
the hawser or any defect in material, the doctrine of "res ipsa loquitur" did
not apply. ^^

Burden of Proof of Facts Justifying Assault by Captain. — In an action
by a passenger on a steamboat for an assault committed by the captain the
burden of proving the facts set up by way of justification rests on defendant.^-

§ 4422. Admissibility and Competency. — In an action against a carrier
by water for personal injuries to a passenger the general rules as to the ad-
missibility and competency of evidence prevail. ^^ Thus, evidence of a habit
or custom of the passengers ^-^ to disregard steamboat rules ^^ is admissible.
But mere opinion evidence ^^ and evidence as to the custom of the vessel in
making landings and discharging passengers ^' is inadmissible.



50. Licensees on wharf — Res ipsa
loquitur. — Duhme v. Hamburg-American
Packet Co., 184 N. Y. 404, 77 N. E. 386,
112 Am. St. Rep. 615.

51. 94 N. Y. S. 1102, 107 App. Div. 237,
reversed in Duhme v. Hamburg-American
Packet Co.. 77 N. E. 386, 184 N. Y. 404,
112 Am. St. Rep. 615.

52. Burden of proof of facts justifying
assault by captain. — Levidow v. Starin, 60
Atl. 123, 77 Conn. 600.

53. See ante. "Admissibility of Evi-
dence," §§ 2854, 2880.

54. Where the injury complained of
was sustained by the fall upon the plain-
tiff of a small boat, vi'hich was suspended
over the main deck on the larboard side
of the defendant's steamboat, and which
fell at a time when four or five persons
were in it and another was trying to get
into it, evidence that passengers had
been in the habit of sitting in it so fre-
quently before the accident that the offi-
cers of the steamboat must have known
of such habit is admissible; though such
evidence would not necessarily show that
they had any reason to suppose that such
occupation would be dangerous. Sim-
mons V. New Bedford, etc.. Steamboat
Co.. 97 Mass. 361, 93 Am. Dec. 99.

55. Evidence of disregard by passengers
of steamboat rules as to starboard boat,
rails, or hurricane deck has no tendency
to show either a license, permission, or
custom affecting the larboard boat, or
that there was danger of its being abu-
sively or otherwise irregularly used by
passengers, or in a manner dangerous to
other passengers; such evidence is in-
competent as to the use of the larboard



boat, and the jury should be instructed to
this effect, where such evidence has been
received in an action against the steam-
boat company, by a passenger who has
been injured by the fall of the larboard
boat upon him. Simmons v. New Bed-
ford, etc.. Steamboat Co., 97 Mass. 361,
93 .A.m. Dec. 99.

56. Where the injury complained of was
sustained by the fall upon the plaintiff
of a small boat, which was suspended
over the main deck on the larboard side
of the defendant's steamboat, and which
fell at a time when four or five persons
were in it and another was trying to get
into it, the opinion of a witness at the
trial, whether it was not manifestly to
the discernment of passengers of com-
mon understanding an inappropriate
place for passengers to be in, is inadmis-
sible. Simmons 7'. New Bedford, etc.,
Steamboat Co., 97 Mass. 361, 93 Am.
Dec. 99.

57. Custom as to making landings and
discharging passengers. — In an action
against the owner of a steaml>oat for in-
juries to a passenger received while at-
tempting to go ashore, the evidence of
plaintiff tended to show that, at the in-
stance of the purser, she attempted to
land while the boat was lying motionless
within a foot or less of the wharf, and
was thrown into the lake by the boat
starting before she had opportunity to
alight, and the evidence of the defendant
tended to show that plaintiff of her own
volition attempted to step a distance of
three or more feet from the rail of the
boat while the boat was in motion. Held,
that evidence as to the custom of defend-



§§ 4422-4423



CARRIERS.



4000



Condition Shortly before Accident. — In an action for the death of a passen-
ger from the sinking of a boat, the conditions shortly after the accident af-
forded some evidence of the condition at the time.^^ Evidence of the shp-
pery condition of the cabin floor of a steamer, where a sick and helpless pas-
senger was moved in her chair by an employee of the vessel, is competent in
an action to recover for a resulting injury. ^^

Action for Assault by Ship's Surgeon in Vaccinating Passenger. — In
an action against a steamship company for assault by a ship's surgeon in vac-
cinating a steerage passenger brought to a port in Massachusetts, evidence
consisting of the printed quarantine regulations of the port, to the effect that
only such steerage passengers as held certificates from such surgeon that they
had been vaccinated would be allowed to land without detention or vaccina-
tion, and of testimony that such regulations were carried out, is properly ad-
mitted.<5o

§ 4423. Weight and Sufficiency. — In an -action by a passenger against a
carrier by water for personal injuries, testimony from which a jury might in-
fer negligence, if unexplained, is sufficient to support a verdict for the plain-
tiff.^^ But where the testimony of the defendant shows that there was no
negligence, and the jury explains the evidence introduced by the defendant
from which, unexplained, the jury might have inferred negligence, a verdict
for the plaintiff' based on defendant's negligence is unsupported by the evi-
dence.^- In such actions the evidence has been held sufficient to show that
the loss of the vessel was due to some fault in her or on the part of the mas-
ter and crew ; *^^ that the carriers failed to exercise care in attaching a tug to
a barge and in navigating them ; ^^ that the captain had knowledge of the in-
toxication of a passenger whom he lifted from the floor and left to stand un-



ant in making landings and discharging
passengers was inadmissible. McKay v.
Anderson Steamboat Co., 99 Pac. 1030,
51 Wash. 679.

58. Condition shortly before accident.
— -Indiana Union Tract. Co. v. Scribner,
47 Ind. App. 621, 93 N. E. 1014.

59. Chicago, etc., Steamship Co. v.
Lynch, 201 Fed. 70, 119 C. C. A. 408.

60. Action for assault by ship's surgeon
in vaccinating passenger. — O'Brien v.
Cunard Steamship Co., 1,54 Mass. 272, 28
N. E. 266, 13 L. R. A. 329.

61. Weight and sufficiency. — See ante,
"Sufficiency of Evidence," §§ 2881, 2904.
See Louisville, etc., Mail Co. v. Gilliland,
24 Ky. L. Rep. 2081, 72 S. W. 1101.

In an action for damages for injuries
alleged to have been caused by defend-
ant's negligence while plaintiff was a
passenger on a barge towed by a tug
owned and controlled by defendant, evi-
dence held sufficient to sustain a ver-
dict in plaintiff's favor. Judgment 73 N.
Y. S. 91. 65 App. Div. 361, affirmed in
Hill V. Starin, 66 N. E. 1110, 173 N. Y.
632.

62. Louisville, etc., Mail Co. v. Gilli-
land, 24 Ky. L. Rep. 2081, 72 S. W. 1101.

Defendant's evidence showed that ex-
tra speed was necessary to overcome the
eddy; that a stiff wind was blowing; that
the accident occurred through the eddy
driving the bow of the boat upstream and
against the tree, and that, while a still
higher speed might have avoided this,



due care of passengers prevented a
greater speed. Held, that a verdict for
plaintiff, based on defendant's negligence,
was unsupported. Louisville, etc.. Mail
Co. V. Gilliland, 72 S. W. 1101, 24 Ky.
L. Rep. 2081.

63. Evidence considered, and held to
show that the loss of a schooner, which
foundered without due stress of weather,
was due either to some fault in the ves-
sel or on the part of her inaster and
crew, which gave a legal claim for com-
pensation against the owners to the sur-
viving passengers and the representatives
of those who were lost. The Jane Grey,
99 Fed. 582.

64. Negligence in attaching tug to
barge and navigating them. — Plaintiff
was a passenger on a barge towed by
a tug, which were owned and operated
by defendant. The tug was attached to
the barge by a hawser passed through a
chock in the bow of the barge, and fas-
tened to a cleat in the bow deck floor.
Plaintiff was on the bow deck, when the
hawser tore away the chock and side rail,
and either broke or slipped from the
cleat, catching plaintiff's leg, and cutting
it off. Plaintiff's evidence tended to
show that the hawser was insecurely fas-
tened, and too long; that the tow turned
nearly at right angles, and when the
hawser became taut the barge was tipped
so that furniture slid along the deck, and
people fell down. Defendant's evidence
tended to show that the hawser was



4001



carriage; of passengers.



§§ 4423-4424



supported ; 65 that the accident was caused by the stewardess of the steamer;*^**
that the caretaker of an injured child was not negHgent ; •''^ that plaintiff was
injured without fault on his part by being struck by a timber thrown over the
side of the vessel by the crew.*^^

Assault by Captain. — Where, in an action by a passenger on a steamboat for
an assault by the captain, defended on the ground that what was done by the
captain was done for the purpose of awakening the passenger to demand the
fare due for his six year old daughter traveling with him, the jury were au-
thorized in finding that while, by the rule of defendant, half fare was required
for a child of that age, the purser of the boat had declined the passenger's of-
fer to buy a ticket for his daughter; that the deck watchman had told the
passenger that it would be proper to take the child with him into the men's
cabin ; that the captain not only used unnecessary violence in awakening the
passenger, but pulled him of¥ his berth, shook and pinched him, and tore his
clothes ; and that this was done in tiie presence of a number of passengers, and
accompanied with a threat of arrest for attempting to defraud, and a verdict
for plaintiff for a substantial amount was authorized.*^ ^

§ 4424. Questions of Fact.— See ante, "Questions for Jury," §§ 2905,
2921.

Negligence of Carrier. — If there is any evidence from which the jury might
infer negligence it is the duty of the court to submit the question whether the
defendant was guilty of negligence, to the jury. Whether the carriers were
negligent in failing to have certain nuts properly examined before the acci-
dent,"^ in failing to station guards at a space in the railing of the vessel where



properly attached, and did not break; that
the chock was in a reasonably safe con-
dition, and the vessels were carefully navi-
gated. Held, that the evidence was suffi-
cient to sustain a finding that the defend-
ant failed to exercise the care in attaching
the tug to the barge and in navigating
them which, as a common carrier, he
owed to his passengers. Judgment 73 N.
Y. S. 91, 65 App. Div. 361, affirmed in
Hill V. Starin, 66 N. E. 1110, 173 N. Y.
632.

65. Knowledge of intoxication of pas-
senger. — In an action for injuries to a
steamship passenger by the negligence of
the captain in letting plaintiff stand un-
supported while helpless from intoxica-
tion, after the captain had lifted him
from the floor, so that plaintiff fell and
broke his arm, evidence held to sustain
a finding that the captain, with knowledge
that plaintiff was intoxicated to a helpless
degree, lifted him to his feet from the
floor where he had been discovered
asleep, and left him standing without any
support, by reason of which plaintiff fell
to the floor and broke his arm, without
contributory negligence on his part, and
that by reason thereof he suffered pain
and loss to the amount of $575. Doherty
V. California Nav., etc., Co. (Cal. App.),
91 Pac. 419.

66. Accident caused by stewardess. —
Evidence in an action by a passenger
against a steamship company for personal
injuries, held to show that the accident
was caused by negligence of the steward-
ess of the steamer, rendering the ship-



owner liable. Korzib v. Netherlands-
American Steam Nav. Co., 169 Fed. 917,
decree affirmed in 179 Fed. 1019, 102 C.
C. A. 664.

67. Caretaker of child not negligent. —
Where a child fell over a mat at an en-
trance to a saloon on a passenger steamer
while in charge of her mother and a
nurse, and the evidence was conflicting as
to the lighting of the cabin and passage-
ways, libelant's contention being an ab-
sence of artificial light, it was held that
the caretakers of the child were not neg-
ligent. The North Star, 169 Fed. 711.

68. Passenger struck by timber thrown
overboard by crew. — Evidence examined,
and held to sustain the allegations of a
libelant that while a passenger on re-
spondent's ship he was injured, without
negligence on his part, by being struck
by a long timber which was thrown over
the side of the vessel by the crew, under
command of an officer, without having
been given any warning of the danger.
Pouppirt V. Elder Dempster Shipping, 122
Fed. 983, reversed in 125 Fed. 732, 60 C.
C. A. 500.

69. Assault by captain. — Lcvidow v.
Starin, 77 Conn. 600, 60 Atl. 123.

70. Negligence in failing to inspect
nuts. — In an action for the personal in-
jury of a passenger on defendant's steam-
boat, due to a failure of a part of the
boat's machinery to operate, where it was
shown that certain nuts were loose, and
needed frequent attention, and the evi-
dence as a whole presented a sul)stantial
question as to whether, if they had been



§ 4424



CARRIERS.



4002



a railed bridge between it and the wharf boat rested/ ^ in faiHng to provide
a protecting board in front of a temporary bed,'^^ and in moving in a sick and
helpless passenger without her consent from a place of comparative safety to
one less safe/^ are questions for the jury. The questions whether the carrier
took proper precautions in securing a larboard boat, or preventing passenger
from standing under it or getting into it, are questions of fact for the jury.'^"*
So, also, whether the carrier was negligent in coming into collision with an-
other boat ^^ or in striking a tree in making a landing at a customary place,'^*'
are questions for the jury. And where the plaintiff was injured by the giving
away of part of her berth,"" or by falling down a stairway into the hold of a ves-



properly examined before the disaster, it
might not have been avoided, the ques-
tion of defendant's negligence was prop-
erly submitted to the jury. Wilmington
Steamboat Co. v. Walker, 120 Fed. 97,
56 C. C. A. 49.

71. Failing to station guards at space in
railing. — Defendant operated a passenger
boat between the city of Cincinnati and
a pleasure resort a few miles up the
river. Passengers in going to and from
the vessel at Cincinnati passed over a
wharfboat, between which and the
steamer there was a railed bridge three
feet wide, and on the side of the
steamer, where it rested, there was a
space in the railing nine feet wide.
Guards were usually stationed at such
space on either side of the bridge to pro-
tect passengers going off the boat from
stepping or falling ofif. Plaintiff's intes-
tate, a boy 12 years old, with his mother,
her sister, and two small children, re-
turned on the boat late one evening with
some 1,000 other passengers. There was
much crowding at the bridge, and each of
the women carried a child. In passing
onto the bridge in some way plaintiff's
intestate went to one side and fell between
the boats and was drowned. There was
evidence tending to show that there were
no guards stationed at the sides of the
bridge. Held, that the question of de-
fendant's negligence was one for the jury.
Coney Island Co. v. Dennan, 149 Fed. 687,
79 C. C. A. 375.

72. Failing to provide protecting board
in front of temporary bed. — Plaintiff,
while a passenger on defendant's steam-
ship, complained of the narrowness of his
berth, and the steward made a bed for
him on a couch, widening it by placing
a board under the mattress. This board
prevented the insertion of the usual verti-
cal protecting board in front, and during
a storm plaintiff was thrown from the
couch, owing to the pitching of the ves-
sel, and was injured. Held, in an action
to recover for such injury, that the ques-
tions whether or not defendant was neg-
ligent in failing to provide a protecting
board, and whether the danger was so
obvious that plaintiff was chargeable with
contributory negligence, were properly
submitted to the jury. International Mer-



cantile Marine Co. v. Smith, 145 Fed. 891,
76 C. C. A. 423.

73. Moving helpless passenger to less
safe place. — The question of the liability
of a vessel owner for an injury to a sick
and helpless passenger, who was moved
by an employee, without her consent or
volition from a place of comparative safety
to one less safe, where she was thrown
down and injured by the pitching of the
vessel, held one for the jury. Chicago,
etc.. Steamship Co. v. Lynch, 201 Fed.
70, 119 C. C. A. 408.

74. Simmons z'. New Bedford, etc.,
Steamboat Co., 97 Mass. 361, 93 Am.
Dec. 99.

75. In an action by a passenger on a
boat for injuries sustained in a collision
between it and another boat, evidence ex-
amined, and held that whether the latter
boat was negligently managed, because of
the failure of those in charge thereof to
give the proper signal, if the former boat
carried the proper lights, or because they
failed to exercise proper care, if the
former boat only carried a white light,
so as to merely indicate the approach of
a floating craft, was for the jury. Louis-
ville, etc.. Packet Co. v. Mulligan, 77 S.
W. 704, 25 Ky. L. Rep. 1287.

Collision with barge tied at wharf. — -
Evidence in an action for injury to a pas-
senger on a steamboat, by its running
into a barge tied up at a wharf near that



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 167 of 214)