Delaware & Chesapeake Steam Towboat Co. v. Starrs

The opinion of the court was delivered, February 27th 1871, by

Sharswood, J.

The first three assignments of error relate to the admission of the opinions of witnesses produced as experts. It is objected that they were not first shown to be such. This is a preliminary question to be determined by the court in the first instance. If the court shall think they are primá. facie qualified, it will then be for the jury to decide whether any, and, if any, what weight is to be given to their testimony. It is a matter very much within the discretion of the court below, and if it appears that the witnesses offered had any claim to the character of experts, the court will not reverse on the ground that their experience was not sufficiently special. The question in the case now before us related to the proper mode and time of changing the fastening of boats in a tow, when for any reason it became necessary. It cannot be said that those frequently on board of such boats, while being towed, and interested either as captains or owners, have not experience in such matters, though it may not be equal to those engaged on board the tugs. Men who follow the water for a living are generally, I think, close observers ; and this results from the monotony of their employment in general. Whenever anything unusual occurs they take accurate notice of it. Captains of boats in a tow stand at their helms all day, or lounge about the deck, with nothing to do or think about; hence they are likely to be keen observers of all the circumstances occurring in the course of a trip. Such men form their opinions from facts within their own experience, and not from theory or abstract reasoning. They come, therefore, even more properly within the definition of experts than men of mere science. We think the three witnesses produced fall properly within the category, and that there was no error in allowing their opinions to go to the jury for what they were worth.

The fourth, fifth and sixth assignments of error may be considered together. Did the contract to tow the canal-boat, “ at the risk of the masters and owners thereof,” mean to exempt the defendants below from all responsibility for the negligence of their servants ? If it did not, it will be unnecessary to consider whether it is competent for an ordinary bailee for hire to make such a stipulation. It is clear that the Steam Towboat Company are not common carriers — in other words, do not insure the safety of the boats they undertake to tow — and that the measure of their liability is, therefore, ordinary skill and care: Brown v. Clegg, 13 P. F. Smith 51. It is contended that these words in the contract have, therefore, no legal effect, unless they be construed to mean that the towing 'company shall not be liable for the negligence of their officers and servants. But this argument is altogether inconclusive and unsatisfactory. Nothing'is more common than for men to express in their contracts and other writings that which would be the exact legal result if nothing had been said or written. It cannot be applied as a rule of construction to extend, the meaning beyond what the words themselves authorize. “ At the risk of the master and owners,” is simply “we, the towing company, do not assume the liability of common carriers — we do not insure the safety of the boat.” It cannot be inferred, without great violence to the language, that they meant to say: “ We do not undertake to tow the boat as we ought to do.” It is quite possible that there might be a contract by which the Steam Towboat Company might hire or let their tug to the owners or captains of the canal-boats, and stipulate that they should employ the officers and servants on board the tug. But surely such a contract cannot be legitimately deduced from words like these in this writing. There was nothing, therefore, to change the legal standard of responsibility — to reduce the liability of the towers from ordinary to gross negligence.

It remains to consider the seventh assignment of error. I think it very clear that the stipulations contained in the contract, subject to which it was made, are not in the nature of warranties— conditions the breach of which avoids the contracts entirely. Such is the principle in cases of this nature, as settled in Hart v. Allen, 2 Watts 114, where in an action against a common carrier for a loss, it was held not to be sufficient to entitle the plaintiff to recover, that there was a defect about the vessel, or want of skill in the carrier; but it must also appear that such defect or want of skill contributed or may have contributed in some measure to occasion the loss. There, if the implied stipulation on the part of the carrier that the vessel should be fit and his servants competent, had been expressed, it could have made no difference in the result. Now, inasmuch as against the towboat company a defect in the tug or its crew could not be imputed as a ground of recovery, unless the loss was occasioned thereby, it seems no more than reasonable that the same rule should be applied to the other party to the contract. So in Hice v. Kugler, 6 Whart. 336, in an action by the owner of a canal-boat against the steersman, whom he had employed to take her down the river, to recover damages for the loss of the boat, which was carried over a dam, in consequence of the negligence of the defendant, it was held that it was not a sufficient answer to the charge of negligence, that the boat was not properly provided with poles and hands, if the vessel was improperly navigated too near the dam; and in Souter v. Baymore, 7 Barr 415, where the master of a vessel had contracted to carry no other cargo, and in violation of his contract took additional cargo on board, it was held to be no defence to an action for freight that an injury had arisen to the cargo, except so far as the damage resulted from the breach of his contract. The learned judge below left it fairly to the jury to say whether the non-compliance with the stipulations by the plaintiff did or- did not contribute to the loss, which under these cases was the only question. Judgment affirmed.