Adams v. Wiggins Ferry Co.

• Decision Date: 31 March 1858
• Citation: 27 Mo. 95
• Parties: ADAMS et al., Respondents, v. WIGGINS FERRY Co., Appellants.
• Court: Missouri Supreme Court

27 Mo. 95

ADAMS et al., Respondents,

v.WIGGINS FERRY Co., Appellants.

Supreme Court of Missouri.

March Term, 1858.

1. If, in a case of collision, both parties are in fault, and the fault or negligence of each contributes to the injuries received, neither party can be made to respond to the other. This doctrine does not, however, apply to a case in which the fault or negligence of the party seeking a recovery contributes only remotely and indirectly to the injury complained of.

2. If both parties actively contribute to the injury at the time of its commission, there can be no recovery by either; where, however, the fault or negligence of one party is merely passive, as where his wrong consists in mooring his boat in a prohibited place at a wharf, he may recover for an injury arising from a collision, if the other party does not exercise ordinary care and prudence.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover damages for the loss, through the negligence of defendant, of a barge belonging to the plaintiff. The barge was lying at the wharf in the city of St. Louis, and was struck by a ferry-boat belonging to defendant. The defendant denied the negligence alleged, and alleged that the barge was lying at a point at the wharf that was appropriated by the city ordinance to the ferry-boats belonging to defendant; that the injury of which plaintiffs complained resulted from the wrong of plaintiffs in thus mooring their barge.

The following instruction was given to the jury at the instance of plaintiff: “1. If the jury shall believe that the barge or wood-boat in question was moored in a place not permitted by the city authorities at the time of the collision referred to in the petition, and that notwithstanding this the ferry-boat of defendant could have reached the landing by the exercise of ordinary care and skill on the part of those who had charge of said ferry-boat, without inflicting the injury complained of, then the fact of her being so out of place constitutes of itself no defense to this action.”

The court, of its own motion, gave the following instructions: “2. If the jury believe from the evidence that the plaintiffs were co-partners at the time of the injury complained of, and that the barge and wood in question were their property, and that the injury to said property was caused by the negligence or unskillfulness of the officers or crew of the ferry-boat belonging to the defendant, without any fault on the part of the owners, officers or crew of the barge contributing substantially thereto, the jury should find for the plaintiffs, and assess the damages sustained thereby. 3. If the injury was caused by the negligence or unskillfulness of the plaintiffs, or of the officers or crew of said barge, or if such negligence or unskillfulness contributed substantially to produce said injury, or if the injury was not caused by negligence or unskillfulness on the part of the officers or crew of the ferry-boat or agents of the defendant, then the jury should find for the defendant. 4. If both parties were in fault, and the fault of each contributed substantially to produce said injury, or if neither was in fault, the jury should find for the defendant. 5. If the barge was moored and left by her owners in a hazardous position, and the officers and crew of the ferry-boat used ordinary care and skill to avoid injuring the barge, and the injury complained of occurred notwithstanding said care, diligence and skill on the part of said ferry-boat, the jury should find for the defendant. 6. If the barge was in a dangerous position at the time, and the injury complained of would not have occurred if ordinary care, diligence and skill had been used on the part of the ferry-boat, then the jury should find for the plaintiffs, unless the plaintiffs, by their negligence or unskillfulness at the time, contributed substantially to said injury.”

The court gave the following instructions at the instance of defendant: “7. If the jury believe from the evidence that the injury done to the barge was occasioned by the negligence of both plaintiffs and the defendant, and their mutual negligence caused or produced the injury, the plaintiffs cannot recover, and the jury will find for the defendant.”

Numerous instructions asked by defendant were refused. The jury found for plaintiffs.

B. A. Hill, for appellant.

I. The court erred in giving and refusing instructions. If the plaintiffs' barge was moored in an improper place, according to the ordinances of the port, the plaintiffs cannot recover, unless the defendant willfully ran into her without any necessity for so doing, and sunk her. Defendant was not required to use any other than ordinary precautions. The plaintiffs were in fault in mooring the barge at the ferry landing. Being in fault they can not recover, unless defendant willfully ran into the barge without occasion. Plaintiffs' fault tendered to produce the injury. A vessel injured by negligent mooring cannot recover for the damages received. (1 How. 89; Angell on Carr. §§643-6, 633, 638; 29 Eng. Law & Equity, 49.)

Gray, for respondents.

I. The instructions given were legal and proper, and covered the whole law of the case fully and fairly. (Angell on Carr. §§638-9; Sedg. on Dam. 469, 470; 11 East. 60; 9 Carr. & Pag. 601, 613; 3 M. & W. 244; 1 Scott, 392; 16 Conn. 420; 19 Conn. 566; 1 Denio, 91; 3 Ohio, State, 172.) When both parties are in fault, the plaintiff remotely and the defendant proximately, the plaintiff may be entitled to recover. (10 M. & W. 545; 24 Verm. 488; 3 Ohio, State, 172; 4 Id. 474.)

SCOTT, Judge, delivered the opinion of the court.

The rule that there can be no recovery when both plaintiff and defendant are in fault, and each, by his negligence or otherwise, has contributed proximately and directly to the injury, has its most frequent application in cases of collisions, of vessels, carriages and like vehicles, when they are in motion and on the public thoroughfares. But in such collisions, if one party finds the other in fault, he cannot...