Thomasson v. Agnew ( 1852 )

Mr. Justice Yerger

delivered the opinion of the court.

The plaintiff in error, the captain of a steamboat, was sued in trespass, for damages done to the defendant’s wharf-boat, in carelessly and negligently landing a steamboat against it. On the first trial the jury found a verdict for Thomasson; but a new trial was granted, and a bill of exceptions setting out the evidence was taken to the order granting the same. On the second trial a verdict was found against Thomasson, and none of the evidence is set out in the record. The only error assigned is the granting of the new trial. We think the court erred in granting it. There is nothing, in our opinion, that justified the court in doing so. The proof in the record shows that the boat landed about eleven o’clock at night, in the month of December ; that at the time of landing it was very dark and stormy, and that the wind was blowing very hard towards the shore and down the river, and that the boat landed as well as boats usually do under similar circumstances; and also, that the wharf-boat was very old, rotten, and leaky. This is in substance all the proof in the cause. On this evidence, we think it clear that the defendant ought not to have been held liable for the damages done to the wharf-boat. The wharf-boat was intended by the plaintiff as a landing for steamboats. In landing his steamboat, the defendant was in the exercise of a legal right; and if, in the exercise of that right, any injury was done to the wharf-boat, the defendant is not liable for damages resulting therefrom, unless occasioned by his want of the usual and ordinary care, skill, and prudence exercised in like cases. If the injury resulted from inevitable accident, and the defendant could not have prevented it,- owing to the darkness of the night and the force of the wind, or other cause over which he had no control, and the landing was made with the usual and ordinary skill and prudence that boats are landed under like circumstances, the defendant should not have been held liable. We think the first verdict was right, and should not have been set aside. We, therefore, reverse the judgment of the court in ' favor of the plaintiff on the second trial, and set aside the verdict of the jury on that trial; we also reverse the order granting the new trial, and setting aside the first verdict in favor of Thomasson, and enter a judgment on that verdict in his favor in this court.

Judgment reversed.