Gilmore v. Ross , 1881 Me. LEXIS 61 ( 1881 )

WaltoN, J.

This action is based on alleged negligence. The plaintiff says that while she was out in a small row boat, she was negligently run down and injured by the- defendants’ steam tugboat. The case has been twice submitted to a jury, each time resulting in a disagreement. By agreement of parties the case is now to be decided by the full court. The question is whether the alleged negligence is proved. We think it is not.

The case shows that the defendants were engaged in carrying passengers to and from Belfast and liockland, and the camp-meeting grounds at Northport. Having more passengers than they could accommodate on their steam tug, on the afternoon of August 7, .1877, they lashed a schooner to the side of the tug, and, taking on board some live or six hundred passengers, left the wharf at Northport for Bocldand. At this time, the plaintiff, a young woman about twenty-three years of age, was out in a small rorv-boat, unattended by any one except a child about six years old. As the steam tug started from the wharf, the plaintiff commenced to row out into the harbor. The steamer, on leaving, moved partly in a circle ; and, unfortunately, the plaintiff' rowed directly into the course which the, steamer took. While in this position, and not more than one or two hundred feet from the steamer, one of the plaintiff’s rowlocks slipped out. This event seems to have so disconcerted or frightened her, that, instead of replacing the rowlock, or, in any way, endeavoring by the use of the remaining oar, to move her boat out of the way, she threw down her oars and threw up her arms, and, as she says, called to them to keep off. The captain of the tug immediately signalled the engineer to stop the tug and back as quickly as possible, and the engineer did so. But the tug was under such headway, and the plaintiff’s boat was so near, that the impending collision was not avoided. The plaintiff having ceased all efforts to guide or direct her boat, it swung round, came directly under the bow of the schooner wliich was lashed to the side of the tug, and was capsized. A deck hand from the tug jumped into the water and supported the plaintiff and the little girl that was with her, till a boat from a vessel which was near by came to their assistance, and they were rescued.

A careful examination of the evidence fails to satisfy us that this accident to the plaintiff was owing in the slightest degree to any fault on the part of those in charge of the tug. if’ the accident was not the result of the plaintiff’s own negligence, then, we think, it must be regarded as one of those unavoidable or inevitable accidents for which no one is to blame.

It is said that those in charge of the tug were negligent in not having a lookout. We think they did have a lookout. The captain himself was acting as a lookout. He occupied the best position on the boat for observation; and, although his eye was not on the plaintiff at the moment her rowlock slipped out, his attention was instantly called to her situation by a passenger who was standing at his side, and he then saw her, and a score of separate lookouts could not have secured more prompt action to avoid the collision than was then had. We think the accident is attributable in no degree to the want of a lookout.

It ‘ is further said that the captain of the tug was not the registered master, and that he was not licensed as a master or pilot, and that the tug had no right to be navigating the waters of the bay, and was liable to seizure. These are irrelevant facts. The owners of the tug are not .being prosecuted for violations of law in these particulars. The gist of the action is alleged negligence in the management of the tug. All other matters are outside of the issue, and wholly immaterial. Our conclusion is that the alleged negligence is not proved.

Judgment for defendants.

Appleton, C. J., Danforth, Virgin, Petees and Libbey, JJ., concurred.