Foster v. Holly , 38 Ala. 76 ( 1861 )

A. J. WALKER, C. J.

It is probable that the tendency ■" of the second charge given by the court was to mislead'-»’ the jury ; but we will not reverse on that account. If in* fact the place where the skiff was hitched-was-'safe and se-~ cure, except as rendered otherwise by the negligence of'defendants’ vessel, we suppose it might-bd affirmed, as a legal ‘ proposition, that it was in a proper place. But a skiff-would certainly be fastened in an improper place, if-hitched so as to be difficult • of removal, in the channel along which .vessels auei frequently passing. The place would be improper, because of the peril to-itself, and to - other vessels which might be passing. — The Scioto, Davies’ Rep. 365 ; 1 Parsons on Maritime Law, 201; Strout v. Foster, 1 How. (U. S.) 89. And it could scarcely be said •of a vessel thus situated, that it was safe and secure except as it -might be affected by negligence in the navigation of some-other vessel.

[2.] The third charge given asserts, that a vessel entering a harbor “is bound to keep the most vigilant watch.” Undoubtedly, a vessel entering a harbor is always bound to exercise -great care and diligence; — 1 Parsons on Maritime Law, 201 ; Culbertson v. Shaw, 18 How. 584 ; Ward v. Dowman, 6 McLean, 231. The law exacts the exercise of ordinary care. What is ordinary care, must depend ¡upon the circumstances of each case. ■ The degree of vigilance which would be -ordinary care on the part of a vessel entering a rarely frequented port in the day-time, would not be ordinary care in a vessel entering a much frequented port, abounding in ships, in a dark night. The law exacts an increase -of vigilance with the circumstances which increase its necessity. — Kelly v. Barney, 2 Kern. 429 ; The Scioto, Davies’ Rep. 361. Whether or not the circumstances of this case were such as to require the very greatest vigilance, was a question for the jury. The court should have instructed the jury to consider the number of vessels accustomed to frequent the port of Mobile, whether it was day-time or night, and any other circumstances in the case affecting the question ; and left it to the jury to determine what degree of vigilance was requisite to fill the rule requiring ordinary care. Negligence is, ordinarily, a question for the jury. — Hibler v. McCartney, 31 Ala. 506. This charge was erroneous, because it invaded the province of the jury.

[3.] We will be aided to a proper comprehension of the questions raised by the refusals to charge as requested, by ascertaining first some of the leading principles which govern in cases of injuries, resulting from the mutual fault of the two parties. It is a general doctrine, long known in the common law, that where the injury is the result of the concurring -faults of the parties, no action accrues to either. In the courts of admiralty, the burden of the injury is apportioned upon equitable principles. — Angelí on the Law of Carriers, §§ 633-, 556. Under the common-law doctrine, which controls in this case, it is not sufficient to preclude the plaintiff’s recovery, that he was in fault; but his fault must be such as contributed proasimatek/ to the injury. — Steamboat Farmer v. McCraw, 26 Ala. 189 ; Grant v. Moseley, 29 Ala. 304 Chitty on Carriers, 273 ; Trow v. Vermont C. R. R. Co., 24 Verm. 487 ; Kerwhacker v. Cleaveland, C. & C. R. R. Co., 3 Ohio State Rep. 172 ; Dowel v. General S. N. Co., 5 El. & Bl. 195 ; Davies v. Mann, 10 M. & W. 546 ; Cummins v. Presley & Spruance, 4 How. 315. The negligence which is the proximate cause of injury, and deprives the injured party of a right of action, is that which occurs at the time.- — -Trow v. Central R. R. Co., supra ; Button v. Hudson River R. R. Co., 18 N. Y. (4 Smith,) 248 ; Harrison v. Berkley, 1 Strob. 525, 549 ; Steamboat Farmer v. McCraw, supra.

It is also a principle belonging to this branch of the law,that although an injury may be occasioned by the defend- 'j ant’s negligence, yet the inj ured party is entitled to no re- / dress, if by the exercise of ordinary care he might have avoided-'the consequences of the defendant’s- negligence. Chitty on Carriers, 273 ; Bridge v. Grand Junction R. R. Co., 3 M. & W. 244 ; Raisin v. Mitchell, 9 Car. & P. 613 (38 E. C. L. 252).; Butterfield v. Forester, 11 East, 60 ; Barnes v. Cole & Fittzhugh, 21 Wendell, 188 ; Rathbun v. Payne, 19 Wendell, 399. This principle seems to- grow naturally out of the doctrine which- denies a recovery where the plaintiff’s negligence has contributed to the production of the injurious result; for the law requires the exercise of care and diligence to avoid injury from another’s negligence ; and it would seem- that the omission of such care and diligence would be negligence, contributing proximately to cause the injury.

[4."] The principles which we have announced, lead us to the proposition, that if the negligence of the defendants’ schooner, was a cause of the disaster, which is the-subject of --complaint, then the plaintiff had a cause of action, unless- the negligence of the plaintiff’s servant, who* was drowned, contributed proximately toffhe- production o£ the injury; or unless those upon the skiff might, by the .exercise of proper care and: diligence, have prevented the .consequences of the negligence on the part of the defend■ants’vessel. ¡If the plaintiff’s .servant and'another, being in a skiff, fastened it to a snag in the. middle of the channel in front of the city of .Mobile* where' vessels, were frequently .passing, and fastened it in such aananner that it could not . be conveniently and expeditiously loosed, they were guilty .of negligence, because .they thus placed themselves in a ¡situation of peril from accidents. But if the skiff, being in that situation, was sunk in consequence of the carelessness ■of a passing vessel, we cannot -say that the fault of so placing the skiff was a proximate cause of the injury. It may be. regarded as a cause; but the connection between it and the resulBwas. not so immediate, that it could properly be denominated, the,proximate cause. — See Harrison v. Berkley, 1 Strob. 525. That it is not a proximate cause, is copiously illustrated by the- decisions .in, analogous cases, ¡to some of which we refer.

Thus, a flat-boat, culpably running at-night, which was struck and sunk by a steamboat,-was by this-court held not to have, proximately contributed to the injury. — Steamboat Farmer v. McCraw, supra. A plaintiff, who - left his donkey .upon the highway, with feet so fettered- as to be unable to get out of the way, notwithstanding that was an illégal act, was .permitted to recover for the-killing, of the donkey, through the negligence of one who was passing along the highway-'with- a wagon. — Davies v. Mann, 10 M. & W. 546. Where there was a collision between two boats, and, in consequence of the collision, an anchor fell upon .the plaintiff’s leg and broke--it, it was decided, that neither the fact that the anchor was improperly carried, nor the fact -that the plaintiff was where he ought not to have been, i relieved the ■ defendant, if the collision was caused by his negligence. — Greenland v. Chaplin, 5 Excheq. R .(M., H. & G.) 243. A jury returned a verdict for the plaintiff, whose sloop, being at anchor, was struck by the defendant’s vessel, and announced'that-there were faults on both rides; and the verdict was alloWed'to -stand, because the plaintiff might be -in fault, and yet have*a-right of recovery.* — Raisin v. Mitchell, 9 Car. & P. 613. See, also, Trow v. Central R. R. Co., 24 Ver. 488; Kerwhacker v. G., & C. C. R. R. Co., 3 Ohio R. 172; Cook v. Champlain Transportation Co., 1 Denio, 91.

It is extremely difficult, if not ’impossible,-to 'draw the line -which divides proximate from ’remote 'causes; and it is, therefore, not unreasonable to find the cases on each side of the line so nearly alike as. to'be-scarcely distinguishable. Nevertheless, the authorities to which we have -been referred *to Show that the placing’-the • skiff in the situation described was a proximate eause- of’the injury, maybe distinguished from this- case. In some of them, culpable failure to display a light was evidently regarded as an immediate cause of a collision at-night, and as the omission of a duty at the time which contributed to the injury. — Dowell &. Gen. Nav. Co., 5 Ellis & Blackburn, 195 ; Rathbun v. Payne, 19 Wend. 399; Barnes v. Cole & Fitzhugh, 21 ib. 188. In the case of Button v. Hudson River R. R. Co., (18 N. Y. 248,) it appeared that the man,“for fhe'killin'g of whom theaction was brought, within sixmainutes before the arrival of • a train of oars, placed himself with his head ¡¡apon the -track--on one’• side, and with his feet'upon the other,-.and* not being seen until it was too late to stop the cars, was killed. The court, in reference to those facts, presuming. ihe--deceased to have<-been in his senses, said, that the deceased must-be regarded as having courted his awn destruction, and co-operated-with the defendants in its production. The distinction between»that case and this is too manifest to render-comment necessary; and-an examination of the decision will show-that it fully recognizes the principles which we have announced. Although there may have been a fault in the placing of the skiff in the situation described an* the record, yet the -plaintiffs may recover, if the defendants’ negligence Gáused the injury, and those who were in the management-of the skiff could not by the exercise of proper diligence, have avoided the consequence of the defendants’ negligence. — Bridge v. Grand Junction Railway Co., 3 M. & W. 244.

It follows from what we have said, that the improper placing of the skiff constituted no defense against the liability of the defendant for negligence directly operating to cause the injury but that if the persons in the skiff could have released it from the snag, and avoided the threatened collision, by the use of reasonable care and diligence, .and did not do so, then-the defendantis not liable, although the negligence of his vessel may have-contributed, to the production of the disaster.

We now proceed to: test the correctness. of the several-refusals to. charge by the principles above set forth. The-second charge requested was properly refused, because, as-.suming upon the facts stated that those in the skiff could, by the use of proper diligence, have avoided the disaster,-., it makes the defendants’ exemption from liability depend-upon the failure to use timely efforts to loose the skiff and get out of the way. The question should have been left to» tire jury, whether, by the use of proper diligence, those in, the skiff could have loosed her and got out of the way., The refusal to give the third charge was proper, because the tendency of the charge was to-mislead, the jury, by producing the impression, that the placing the skiff as it was placed was, in itself, an act which, for the purposes of this -trial, rendered the plaintiff.chargeable with negligence. There was no error in- the refusal of the fourth and sixth charges requested, for the negligent act- mentioned in them was only a remote cause of. the injury. The fifth charge requested was in - strict accordance with one of the principles which we have laid clown in the foregoing opinion, and ought to have been given. The 7th charge as requested is not fully copied into the transcript, and we are unable to pass advisedly upon it. The 9th, charge requested was erroneous, because it excludes from ■ the consideration of the jury the question, whether the defendants’ vessel was not guilty of negligence,- on-, account, of the failure to see the skiff, and to take steps for avoiding the collision, sooner than it did.

The judgment of the court below is reversed, and the canse remanded.