Opsahl v. Judd

Decision Date08 January 1883
Citation14 N.W. 575,30 Minn. 126
PartiesAnna M. Opsahl, Administratrix, v. Samuel Judd and others
CourtMinnesota Supreme Court

Appeal by plaintiff from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial. The case is stated in the opinion.

The case should not have been withdrawn from the jury, and the order denying a new trial should be reversed.

J. N. & I. W. Castle, for appellant.

The court erred in refusing to admit evidence as to the pecuniary loss which the next of kin to the deceased sustained by reason of his death. Railroad Co. v. Barron, 5 Wall 90; McIntyre v. N. Y. C. R. Co., 37 N.Y. 287; Chicago, etc., R. Co. v. Shannon, 43 Ill. 338; Ewen v. Chicago & N.W. Ry. Co., 38 Wis. 613; Kansas P. R. Co. v. Cutler, 19 Kan. 83; March v Walker, 48 Tex. 372; Baltimore & Ohio R. Co. v Wightman, 29 Gratt. 431; Nashville, etc., R. Co. v. Stevens 9 Heisk. (Tenn.) 12.

Marsh, Searles & Nethaway and Geo. F. Sabin, for respondent.

The court had not jurisdiction to try this case. Field on Damages, 507; Whitford v. Panama R. Co., 23 N.Y. 465; Selma, etc., R. Co. v. Lacy, 43 Ga. 461; McCarthy v. Chicago, etc., R. Co., 18 Kan. 46; Rorer on Inter-State Law, 336.

OPINION

Vanderburgh, J.

This action is brought by plaintiff, who is the mother and administratrix of Ole Opsahl, deceased, to recover damages for his death, alleged to have been occasioned by the wrongful acts and negligence of defendants' servants in the management of their steamboat, on which deceased was a passenger. It appears that on or about May 1, 1881, one Taenhauser chartered of defendants' agents the steamboat in question for an excursion from Stillwater to Taylor's Falls, on the St. Croix river, in this state, on Sunday, May 15th, following; the same, however, to be run and managed by the servants and employes of defendants. Plaintiff's intestate took passage on the boat as one of the excursion party on that day, and was thrown overboard and drowned. At the trial several exceptions were reserved to the ruling of the court upon the admissibility of testimony, and, when plaintiff rested her case, the action was dismissed on defendants' motion, upon several grounds, which will be considered on this appeal.

1. We think there can be little doubt that there was evidence in the case properly for the consideration of the jury, tending to prove that the accident was caused by negligence or mismanagement on the part of defendants' servants.

2. Upon the question of damages, evidence tending to show what was the reasonable expectation of pecuniary benefit to the plaintiff, as mother of the deceased, from the continuance of his life, was proper. Shaber v. St. Paul, M. & M. Ry. Co., 28 Minn. 103, 9 N.W. 575. The pecuniary circumstances of deceased, his habits of industry, his accustomed earnings, measure of success in business, and the dependence she might reasonably place on him for support and assistance in the future, growing out of his filial kindness and promises of support, were therefore proper evidence for the jury to consider. McIntyre v. N. Y. Cent. R. Co., 37 N.Y. 287; 2 Wait Act. & Def. 478. Evidence of this character should therefore have been received.

3. It appears that the deceased, at the time of the accident, was on a barge which accompanied the steamboat, and was fastened to it by ropes. The evidence tended to show that the accident was caused by the barge being run into the shore, the shock causing one of the lines to break, and the two boats to swing apart. It was for the jury to say whether the breaking of this line was an efficient cause of the accident, and whether it was sufficiently strong and safe for the use to which it was put; and they were properly entitled to the evidence of the surroundings and the incidents connected with these main facts, and constituting the res gestae, so far as they were at all material, their weight being for the jury. But we think the court rightly rejected the offer to prove the remark made at the time by one of defendants' employes, that "that rope had nearly drowned two or three other men before," as relating to past matters, and immaterial and foreign to the matter depending at the time.

4. It is further contended that the deceased was, by accepting passage upon the steamboat, engaged in an unlawful act, and was particeps criminis with the defendants and their agents in violating the Sunday law. It is a sufficient answer to this objection that the defendants on that day occupied the relation of common carriers of passengers, and their general obligation to use such care and diligence as the law enjoins is not limited by the contract with the passengers, nor with the person who engaged the use of the boat and the services of the crew for that day, but is governed by considerations of public policy. That the undertaking was unlawful does not touch the question. Carroll v. Staten Island R. Co., 58 N.Y 126, 134; Jacobus v. St. Paul & Chicago Ry. Co., 20 Minn. 110, (...

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    • United States
    • Arkansas Supreme Court
    • 1 Junio 1914
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