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A treatise on the law of carriers (Volume 4) online

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at which the steamboat was to land,
whereby passengers on the steamboat
were thrown to the floor, held sufficient
to go to the jury on the question of neg-
ligence. Duggan V. New Jersey, etc.,
Ferry Co. (Del.), 7 Pen. 318, 76 Atl. 636.

76. A steamboat, in making a landing at
a customary place, struck a tree, knock-
ing it over and injuring plaintiff. The
river was "bank full," and there was an
eddy in front of the landing, which ne-
cessitated an approach bow on. The only
evidence of negligence was that the
steamboat was being driven with more
than usual speed. Held, that the issue
of negligence was properly submitted to
the jury. Louisville, etc.. Mail Co. V.
Gilliland, 72 S. W. 1101, 24 Ky. L. Rep.

77. Giving away of part of berth. —
Where plaintiff, a passenger on an ocean


carriage: of passengers.

§ 4424

selj^ the question of the carrier's negHgence is for the jury.

Question of Contributory Negligence. — If a passenger by water was want-
ing in ordinary care, and without negHgence on his part, would not have been
injured, even if the defendant carrier was also negligent, he certainly can not
recover. But the question of his negligence, the evidence being conflicting, is
a question for the jury.'''^ Thus, whether a passenger was injured by falling
down a stairway, ^^ or by the giving way of a part of her berth while she was
attempting to get into it, by climbing up from the lower berth, in the absence of
a ladder; 81 was guilty of contributory negligence are cpestions for the jury.
Whether a passenger was guilty of contributory negligence in passing over a
hatchway,^- in stepping onto a slippery deck,^^ or in not going the direct way to
the waiting room ^'^ are for the jury to decide. And whether a passenger is
guilty of contributory negligence in being in the place he was when injured,* as,
for instance, where he went on the bow deck, after having been warned not to
do so,®^ is also a question for the jury.

Meaning of Order or Advice of Officer of Steamer. — Whether the state-
ment of the mate of a steamer to a passenger, as it approached his landing, that

steamship, was injured by the giving way
of a part of her berth while she was
attempting to get into it^ by climbing up
from the lower berth, in the absence of
a ladder, the question of the shipowner's
negligence was for the jury. Jarowski v.
Hamburg-American Packet Co., 182 Fed.

78. Falling down stairway. — In an ac-
tion for injuries to a passenger on a
steamship by falling down a stairway into
the hold of a vessel, evidence held to re-
quire sulimission of the question of the
carrier's negligence and plaintiff's con-
tril)utory negligence to the jury. Balti-
more, etc., R. Co. V. Moon, 84 Atl. 536,
118 Md. 380.

79. Question of contributory negligence.
— Simmons v. New Bedford, etc., Steam-
boat Co., 97 Mass. 361, 93 Am. Dec. 99;
Jarowski v. Hamburg-American Packet
Co., 182 Fed. 320; Baltimore, etc., R. Co.
V. Moon, 84 Atl. 536, 118 Md. 380.

80. Baltimore, etc., R. Co. v. Moon, 118
Md. 380, 84 Atl. 536.

81. Jarowski v. Hamburg-Ainerican
Packet Co., 182 Fed. 320.

82. Passing over hatchway. — Though
plaintiff liad passed over a hatchway on
a steamboat several times in company
with, or with knowledge of, the mate,
and found it all right, he was not guilty
of contributory negligence, as matter of
law, in assuming that it was safe, but that
question was for the jury. Memphis, etc..
Packet Co. v. Buckner, 57 S. W. 482, 22
K,v. L. Rep. 40], lOS Ky. 701.

83. Stepping onto slippery deck.^In an

action against a steamship company for
injuries sustained by a passenger, owing
to her having fallen on a slippery deck,
the fact that she went froin the door of
tlie saloon on the deck alone, and in so
doing put her left foot on the doorsill,
and then put her right foot forward and
.stepped on the deck, did not show her

4 Car— 57

prima facie guilty of contributory negli-
gence as a matter of law, the evidence
being such that the jury might have found
that she did not know when she stepped
on the deck that it was slippery. Gillum
V. New York, etc., Steamship Co. (Tex.
Civ. App.), 76 _S. W. 232.

84. Going indirect way to waiting room.
— -It was not error to refuse direction of
a verdict for defendant on the ground that
the direct way to the waiting room be-
ing lighted, and plaintiff having volun-
tarily gone the other way in the dark,
without looking, she was guilty of con-
tributory negligence, since, as the testi-
mony tended to show that neither way
was lighted, that as many went one way
as the other, and that if she had looked
she could not have seen the incline, the
question of her negligence was for the
iury. Sullivan v. Delaware, etc., Canal
Co., 47 Atl. 1084, 72 Vt. 353.

85. Going on bow deck after being
warned not to do so. — The defendant's
evidence tended to show that the barge
was not crowded, and the passengers, es-
pecially the plaintiff, were warned not to
go on the bow deck; that this deck was
twice cleared of passengers, including the
plaintiff, and the doors in a partition sep-
arating this deck from the passenger deck
were closed and hooked; that plaintiff
was near the hawser, on the bow deck,
watching it tighten and slack, and saw it
loop when the tug turned; and that he
was warned by a companion just before
the accident. Plaintiff's testimony tended
to contradict this evidence, and to show
that when warned by his companion he
tried to escape, but too late. Held, that
plaintiff was not, as a matter of law,
guilty of contributory negligence in be-
ing where he was, or in not exercising
Iietter judgment, under the circumstances,
to avoid the injury. Judgment 73 N. Y.
S. 91, 65 App. Div. 361, affirmed in Hill v.
Starin, CO N. E. 1110, 173 N. Y. 632.

§§ 4424-4425



he better go down on the lower deck, and get on the stage plank, to save time,
meant that he should go on the stage plank before it was properly placed in the
correct position for a safe landing, is a question for the jury.^^

Question of Last Clear Chance. — In an action for death of a steamboat pas-
senger through falling off a boat and being drowned, the question whether, not-
withstanding deceased's negligence, defendant could, by the exercise of reason-
able care, have prevented his death, is for the jury.^'''

§ 4425. Instructions. — A charge in an action by a passenger against a car-
rier by water for personal injuries must be confined to the scope of the allega-
tions of the pleading,^^ must not be contradictory and too general,^^ must not
invade the province of the jury ^^ by taking from them the determination of the
question of the carrier's negligence, where negligence is to be inferred from pro-
bative facts,*^! and must not ignore the defense of contributory negligence ^-
or be misleading in respect thereto.^^ The rule that, where an essential quahfi-

86. Meaning of order or advise of offi-
cer of steamer. — Arkansas River Packet
Co. V. Hobbs, 58 S. W. 278, 105 Tenn. 29.

87. Question of last clear chance. — Pate
v. Tar Heel Steamboat Co., 148 N. C. 571,
62 S. E. 614.

88. Instructions. — See ante, "Instruc-
tions," §§ 2922, 2967.

In an action against a carrier for inju-
ries to a passenger through the breaking
of the deck of defendant's boat, the peti-
tion alleged that defendant was negligent
in not building the decks strong enough
to hold the passengers carried thereon,
etc., and in permitting the material of the
decks and on which they were supported
to become rotten and too weak to support
the passengers carried thereon, etc. Held,
that an instruction that if the accident
consisted in the falling down of the deck,
and that if plaintiff's injuries resulted
therefrom, the burden of proof was shifted
on defendant to show that such falling
down was through no fault, negligence,
etc., of defendant, and, unless so shown,
the jury should find for plaintiff, pro-
vided they did not further find that plain-
tiff was guilty of negligence in going on
or remaining on the deck, was within the
scope of the allegations of negligence.
Evers V. Wiggins Ferry Co., 105 S. W.
306, 127 Mo. App. 236.

89. Trabing v. California Nav., etc., Co.,
133 Cal. XX, 65 Pac. 478.

90. Hampton z\ Occidental, etc., Steam-
ship Co., 139 Cal. 706, 73 Pac. 579.

In an action for the death of plaintiff's
intestate, who had fallen between a barge
and a wharfboat when alighting from the
barge, many witnesses testified that just
at the moment that deceased was making
her step from the barge to the wharfboat
a vessel belonging to defendant made a
landing at the wharfboat, and struck it
with such force as to cause the separa-
tion of the wharfboat and barge, and that
the landing was an unusual, unsafe, and
dangerous one. Held, that it was proper
to refuse a motion for a peremptory in-
struction in favor of defendant. Louis-

ville, etc.. Mail Co. z: Barnes, 79 S. W. 261.
117 Ky. 860, 25 Ky. L. Rep. 2036, 64 L-
R. A. 574, 111 Am. St. Rep. 273.

91. An instruction in an action for death
of passengers on a steamer, resulting from
the collision therewith of defendant's
steamer, that, if certain enumerated facts
were found, defendant's steamer was fully
complying with the rules and regulations
governing her proper action in entering
the harbor, is erroneous, where, if all the
enumerated facts were true, the jury
might have found that, when it was dis-
covered that the other steamer was out of
her course, or for some reason unable to
mind her helm, defendant's steamer might
have shifted her course, so as to avoid the
collision, and that her- failure to do so
was negligence. Hampton v. Occidental,
etc.. Steamship Co., 73 Pac. 579, 139 Cal.

92. Ignoring contributory negligence. —
Evers v. Wiggins Ferry Co., 105 S. W.
306, 127 Mo. App. 236.

A common carrier by water provided a
safe and convenient place for passenger to
land from the saloon deck of the boat,
and intended the forward part of the main
deck and a slip adjustable to the state
of the tide exclusively for the discharge
and lading of freight and baggage. A
passenger attempted to land from the
main deck, and was injured while he was
on the ship. At the trial of an action
against the carrier to recover for such in-
juries, there was evidence warranting a
finding that the plaintiff was notified that
passengers were to land from the saloon
deck only, and that subsequently he was
warned by an officer of the boat not to
leave it from the main deck and through
the slip. Held, that a refusal to instruct
the jury that he could not recover, if he
received such notice and warning, unless
the injury was willfully inflicted, was er-
roneous. Dodge V. Boston, etc., Steam-
ship Co., 148 Mass. 207, 19 N. E. 373, 2
L. R. A. 83, 12 Am. St. Rep. 541.

93. In an action against a carrier for
injuries to a passenger through the fall-


carriage; of passengers.

§§ 4425-4426

cation of part of a charge is inadvertently omitted, such omission may be sup-
pHed by other parts of the charge, and that if when taking the whole charge to-
gether the true rule is laid and the jury could not have been misled, there is no
error, applies in such cases. ^■^

§ 4426. Special Verdict. — In an action against a carrier by water for in-
juries to a passenger, answers to interrogatories and the general verdict must
be in irreconcilable conflict before the former will control the latter. Courts
indulge every reasonable presumption in favor of the general verdict, and noth-
ing is presumed in favor of the special finding by interrogatories. The antag-
onism between the general verdict and interrogatories must be apparent upon
the face "of the record beyond the possibility of its removal by any evidence
legitimately admissible under the issues. However, if the answers to the in-
terrogatories exclude every conclusion that will authorize a recovery by the
party in whose favor the general verdict is rendered, then judgment should not
be rendered upon the general verdict but upon the answers to the interroga-
tories.^"* In an action for the death of a passenger on a boat alleged to have
been owned by defendant, which the defendant denied, where the jury's an-
swers to interrogatories state that there is no direct evidence that the board of
directors of defendant authorized the purchase or operation of the boat, but
that such board authorized the purchase of the boat by its general superintend-
ent of transportation, rebuilt it, and transferred its employees from its cars to
the boat, and continued them on the pay roll without change of contract ; that
employees of the defendant were in charge of the boat ; that all the money
earned by the boat both before and on the day of the accident and that earned
by defendant's cars was placed in the same bag and deposited together in the
bank to the credit of defendant ; that the directors of defendant knew that its
employees were operating the boat in the spring preceding the accident, which
occurred in August ; and that at the time of the accident, the general superin-
tendent of transportation knew that the boat was being operated for defendant
— it will be presumed, in support of a general verdict for plaintifif, that the di-
rectors and officers of defendant had such knowledge and information about

ing- of the hurricane deck of defendant's
boat, an instruction that, even if the jury
found that some of the passengers were
warned not to go on the deck, plaintifif
could not be charged with negligence in
going thereon unless he was aware of the
warnings, or unless the condition of the
deck at the time he went thereon was un-
safe to a reasonably careful observer, or
not meant for the use of passengers, and
that, in considering whether plaintifif
should have known that the deck was
unsafe or not meant for passengers, the
jury might consider all the physical facts
regarding the approach to the deck, was
not misleading as telling the jury that,
after going on the deck, plaintifif might
shut his eyes as to its apparent physical
condition. Evers v. Wiggins Ferry Co.,
105 S. W. .300, 127 Mo. App. 236.

94. On the trial of an action, wherein
it appeared that the fall of a boat which
was hung over tlie deck was caused by
the breaking of a bolt in its fastenings,
which the plaintifif contended was negli-
gently provided, of insufificient strength,
at a time when several persons were in
it, the judge, after calling attention to
testimony that passengers had been seen

in the small boat on previous occasions,
instructed them that, if the defendants
knew of this, or might with proper vigi-
lance have known of it, and if the fas-
tenings were not strong enough for a
boat liable to be so used, and the defend-
ants knew of such liability and made the
fastenings no stronger, the defendants
would be responsible. Held, that this in-
struction was defective, in that it allowed
the jury to hold the defendants responsi-
ble, if the fastenings were in fact not
strong enough, although the defendants
might have had no notice of their weak-
ness, and might not by the utmost care
and skill have been able to ascertain it;
and that this defect was not supplied by
a general statement in an earlier part of
the instructions that to entitle the plain-
tifif to recover he must satisfy the jury
that the injury which he sustained was
occasioned by the negligence of the de-
fendants. vSimmons v. New Bedford, etc..
Steamboat Co., 100 Mass. 34.

95. Special verdict. — Indiana Union
Tract. Co. 7'. Scribncr. 47 Ind. App. 021,
93 N. K. 1014. See ante, "Verdict and
iMnding," § 2908.

§§ 4426-4429 carriers. 4006

the operation of the boat by its employees as to at least amount to a ratification
of their acts.^*^

§ 4427. Liens. — A lien or privilege upon a vessel for the loss of life of a
passenger is not created by La. Civ. Code, art. 3237, subd. 12, providing a priv-
ilege for loss or damage caused to person or property by negligent management
of the vessel, as this was not intended to apply to actions for damages resulting
in death. ^'^

§ 4428. Damages.— See ante, ''For Personal Injuries," §§ 3400, 3407.

Injury to a Child. — In an action for injuries to a child while a passenger
on a steamer, $600 allowed as compensation for sufifering and the remains of a

Damages for False Arrest and Imprisonment. — Where a passenger on a
steamship was arrested by a watchman, without justification, dragged down the
saloon stairway by the collar, pushed inside the freight room, and kept there in
custody of another watchman for an hour, such passenger being greatly humili-
ated, but no serious harm having been done him further than the indignity and
inconvenience imposed for the time being ; he was entitled to damages in the sum
of $1,000.90

Verdict for Nominal Damages Inconsistent. — A verdict awarding a pas-
senger mere nominal damages for expulsion from a steam boat can not be sus-
tained ; where it authorized any recovery the jury must have found that his
removal was not justified, or that the conduct of the plaintifif warranted his re-
moval but that unnecessary force was used, where he was also subsequently im-
prisoned for half an hour. Such verdict is inconsistent and illogical. ^

Remittitur of Damages. — An award of $1,000 to a passenger as damages
for imprisonment and mistreatment by officers of a vessel has been held to be
excessive, and reduced to $500, where his own conduct was not without blame. ^

§ 4429. Ejection of Passengers. — See ante, "Ejection of Passengers,"
chapter 25 ; "For Ejection," §§ 3408, 3423.

In General. — A vessel engaged in carrying passengers has no right to eject
a passenger whose contract is enforced, on the ground that his ticket is void.^

Ejection of Passenger Suffering from Contagious Disease. — A steam-
ship engaged in carrying passengers has the right both under the United States
statutes and at common law to eject a passenger sufifering from a dangerous

96. Indiana Union Tract. Co. v. Scrib- sliip ticket from New York to Havre on
ner. 47 Ind. App. 621, 93 N. E. 1014. the respondent vessel, which, at his re-

97. Liens.- — - Decree, Jakobsen v. quest by telegram, was extended by the
Springer, 87 Fed. 948, 31 C. C. A. 315, af- claimant. It appeared that afterwards,
firmed in The Albert Dumois, 20 S. Ct. at the request of the person who had en-
595, 177 U. S. 240, 44 L. Ed. 751. gaged the passage, the ticket was can-

98. Injury to a child.— The North Star, celed: but libelant was not notified, and,
169 Fed. 711. ^^ '"''s presenting it at the New York

99. Damages for false arrest and im-

office of claimant, it was accepted, and

r^r-ic.^^^^^*. -D^^i^.,^ „. AT^..<-^ii ^<-^ he was assigned a berth, and went on

pnsonment. — Kagland v. JNoriolk, etc., , , •., ?• cc 4. \ c • >. ^

c<-^^„,i ^o*. n^ ^rr> x> A o~r board with his effects. A few minutes

bteamboat Lo., 163 l-'ed. 3(6. , r ,i i -i j i-l i ^

__ .. . . , , . before the vessel sailed, libelant was no-

1. Verdict for nominal damages mcon- tj^e^ ^hat the ticket was not good; and,
sistent.— Levy J. Providence, etc.. Steam- i^gjng unable to then pay the fare de-
ship Co., 123 Fed. 347. manded, he was ejected from the vessel,

2. Remittitur of damages. — Decree, with a part of his baggage. Held, that
Ragland v. Norfolk, etc.. Steamboat Co., under such facts he was entitled to re-
163 Fed. 376. modified in 169 Fed. 286, main, and his ejection was wrongful, and
94 C. C. A. 562. that he was entitled to recover $500 for

3. Ejection of passengers. — La Gas- the indignity put upon him, together with
cogne, 135 Fed. 577. his expenses during the time he was de-

Libelant, while in New Orleans, was layed, and the cost of a new ticket. La

furnished, under a contract, with a steam- Gascogne, 135 Fed. 577.

4007 carriage; o^ passengers. §§ 4429-4431

contagious disease, as for instance, trachomax.^

Pleading and Proof. — Where a steamboat company in an action for forcibly
ejecting a passenger from its steamship, in answer pleads justification, in that
the plaintiff when ejected was suffering from a dangerous contagious disease,
it has the burden of proving justification as alleged.^

Evidence. — In an action against a vessel for wrongful ejection of a passenger
alleged to be suffering from a contagious disease evidence of her husband and
other witnesses that their intimate relations with her were not followed by any
trouble with the eyes was admissible as bearing on the question whether plain-
tiff" had the disease in question. And evidence that plaintiff was left in Liver-
pool, at a long distance from her friends, was admissible on the question of
damages. But evidence that plaintiff went to Liverpool early in 1904 and was
examined by defendant's doctors, and that she sailed from Liverpool in August
of that year on a vessel of another line, was immaterial.'^

Instructions. — The charge in such action must not be too general or con-
tradictory. In conformity with this such a charge in an action where plaintiff
was arrested by the captain of defendant's steamboat, and chained to a post on
the lower deck, and ejected before he reached his destination, that plaintiff
could recover only the actual damages suffered by him, unless defendant author-
ized the acts complained of, or participated therein or ratified them; and that
the jury should not allow anything by way of punishing the defendant, unless
it authorized the captain's acts or ratified them ; and that, unless defendant par-
ticipated in or authorized the captain's acts or ratified them, the measure of
damages would be the amount which would compensate the plaintiff for all
detriment proximately caused by the wrongful acts, was not erroneous as con-
tradictory and too general.'''

Damages. — Where a passenger on a vessel is deprived of his ticket, ejection
therefrom, and compelled to purchase another, he is entitled to recover the cost
of passage, with interest thereon. He is also entitled to damages for the indig-
nity he suffered in being obliged to leave the vessel when he was entitled to be
carried on her.^

§§ 4430-4442. Passengers' Effects. — See ante, "Passengers' Effects,"
chapter 29.

§ 4430. Liability as Innkeeper or Insurer. — See post, "Delivery to and
Acceptance by Carrier," § 4431.

§ 4431. Delivery to and Acceptance by Carrier. — Delivery into Ex-
clusive Custody of "Vessel's Officers. — The rule seems to be well settled that,
in general, a carrier is not liable for the loss of a passenger's baggage, where
the loss is not occasioned by some particular breach of duty or negligence on
the part of the carrier's servants, unless the baggage has been delivered to and
taken into the exclusive custody of the carrier's servants. A steamship com-

4. Ejection of passenger suffering from gnce between the two counts, he prop-
contagious disease.— Mountford v. Cun- erly ruled that the burden was on de-
ard Steamship Co., 202 Mass. 345, 88 N. fendant to prove justification as pleaded,
E. 782. and could not rely on evidence that its

5. Pleading and proof.— Plaintiff's dec- ship doctor reported that plaintiff had
laration alleged an assault by defendant's trachoma and ought not to be permitted
agents and employees in forcibly eject- to sail, as a justification. Mountford v.
ing her from the steamship, and in a sec- Cunard Steamship Co., 88 N. E. 782, 202
ond count charged that, having purchased Mass. 345.

and paid for a ticket, and having boarded /. t7> -j tvt .r i ^ i

the steamship, defendant put her off the o,^' ^''''^T""T,^^°r^^°''^' .^'- ^^^'''xr'^

steamship and deprived her of passage. x\!^^"^^'^'l^ ^°-' ^02 Mass. 345, 88 N. E.

Defendant pleaded a general denial and ' "'

a special defense that plaintiff was ''• Instructions.— Trabing v. California

ejected because she was suffering from Nav., etc., Co., (io Pac. 478, 133 Cal. xx.

trachoma. Held, that the justice's atten- 8. Damages. — La Gascogne, 135 Fed.

tion not having been called to any differ- 577.

§§ 4431-4-132 CARRIERS. 4008

pany is not permitted to choose whom it will serve, but must afford accommo-
dations to all who pay fare. A passenger ship 's necessarily accessible to all
classes of travelers, and is so far a public place that it is unreasonable to im-
pose upon the owners the burden of liability for thefts of the private baggage
of passengers, unless the baggage has been delivered to and left in the exclusive

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 168 of 214)