Atchison v. Steamboat Dr. Franklin

• Decision Date: 31 March 1851
• Citation: 14 Mo. 63
• Parties: ATCHISON v. STEAMBOAT DR. FRANKLIN.
• Court: Missouri Supreme Court

14 Mo. 63

ATCHISON

v.STEAMBOAT DR. FRANKLIN.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

A collision alleged to be occasioned by the negligence of the officers and crew of the appellees, whereby the steamboat Amaranth, belonging to plaintiff, was sunk in the Mississippi river, near Clarksville, in the month of March, 1849. The above action was brought under our statute concerning Boats and Vessels, and the damages were laid at $30,000. The captain of the Dr. Franklin appeared and pleaded the statutory general issue.

At the trial which took place in May, 1850, evidence was offered and given by the plaintiffs, tending to show that the boats were some three or four miles below Clarksville, in the Mississippi river, and west of the main channel thereof, when the collision occurred on the night of 22nd March, 1849; that the bow of the Dr. Franklin made a break into the side of the Amaranth, belonging to plaintiff, and sunk her. That the Amaranth was much the larger vessel of the two. That the A. was ascending, and the Dr. F., descending the river at the time. That the collision was occasioned by the negligence, recklessness, unskillfulness and neglect of signals of the officers and crew of the Dr. F. That the officers and crew of the Amaranth conducted themselves with skill and care, and that the officers and crew of the Dr. F. conducted themselves recklessly and unskillfully, and that by reason of the sinking of the Amaranth, the plaintiffs were deprived of the use of her for one month, and were forced to expend, in raising her, the sum of $5,835 63, besides the services of her own crew. Plaintiffs then offered to show what the boat would have been worth to plaintiffs, for the thirty days following the 22nd March, 1849, had she continued afloat uninjured; but the court refused to allow such evidence to be given. Plaintiffs then offered to show that the trips for which the A. was engaged for the 20 days following March 22nd, 1849, would have yielded to the plaintiffs, profits to a large amount; but the court refused to permit such evidence to be given, and the plaintiffs excepted to the ruling of the court on the aforesaid points. The court directed the jury that they could only allow to the plaintiffs for the loss of time during which the boat was rendered unserviceable by the collision, interest at six per cent. per annum upon the value, which was shown to be $______.

The defendants offered evidence tending to show that the collision was occasioned by the fault of the officers and crew of the Amaranth, and that the officers and crew of the Dr. F. were free from blame. One of their witnesses, David Berry, after giving evidence of the tenor above indicated, was asked, on cross-examination, if he had not stated that the collision was owing to the mistake of the pilot of the Dr. F., in conversation with Samuel Atchison on coming to St. Louis, the day after the collision. He replied that he had no such conversation with Samuel Atchison. He was then asked if he did not tell A. that in the confusion, on the meeting of the boats, the wrong bell was rung on board the Dr. F. He replied that he did not. He was cautioned, and particularly requested to remember and say if such a conversation had not happened; and he emphatically replied that he never did hold such a conversation with him or any one else. On re-examination by the defendant, he re-affirmed the same statement, admitting that he met Atchison, but denied having had any such talk with him or any other person. Samuel Atchison was then called by the plaintiffs, and being sworn, stated that Berry had held with him on the morning of the 23rd March, 1849, at St. Louis, the conversation which the said Berry had denied in his evidence.

The defendants then offered to re-produce Berry, and in answer to a question by the court, declared their object to be to make him re-affirm what he had already stated on his first examination; whereupon the court refused to permit his re-production for such purpose, and the defendants excepted to said refusal. This was all the evidence. The defendants then asked of the court the following instructions which were given, the plaintiffs excepting. 1. If the jury find from the evidence that the steamboat Amaranth was in fault in producing the collision, and that the unskillfulness or carelessness of those who navigated her, caused the collision, they will find for the defendant. 2. If the jury find from the evidence that the unskillfulness or mismanagement of those who navigated the Amaranth, contributed to the collision substantially, they will find for the defendant. 3. If the jury find from the evidence, that the collision of the the two boats happened in consequence of the negligence, unskillfulness, or inattention of signals, or improperly giving them on behalf of those managing and navigating both boats, they will find for the defendant. 5. That if the collision of said two boats was the result of accident, to which no mismanagement nor neglect, nor unskillfulness on the part of those then navigating and controling the Dr. F. in any wise contributed, then there can be no recovery against the defendant. To the giving of which the plaintiffs excepted.

The defendant also asked the following instruction, which the court refused, and to which the defendant excepted: 4. That if those who navigated and controled the Dr. F. were guilty of no evil motive, and controled said boat and navigated her after she came in sight of the Amaranth, with reasonable skill, care and attention, then the defendant is not liable for the damages of the collision, even although those who navigated the A. were not in fault.

The plaintiff then asked the following instruction: “If the jury find for the plaintiff, they will assess the damages at such sum as the plaintiff has paid for raising and repairing his boat, and interest thereon to the time of rendering their verdict.” To the giving of which the defendant excepted. There was a verdict for the plaintiff for the $6,344 77. Defendant moved to set aside for the following alleged reasons: 1. Verdict was against law and evidence. 2. The court excluded competent testimony offered by defendant. 3. The court refused to permit D. Berry to be recalled to repeat his former statement, after being contradicted by Samuel Atchison. 4. The court admitted improper and illegal testimony on the part of the plaintiffs. 5 The damages are excessive. 6. The court refused proper instructions, and 7 The court gave improper instructions to the jury. 8. The jury misbehaved, as follows, viz: One of them fell asleep, and so continued during a good part of the argument of defendant's counsel, and again fell asleep during the concluding argument of plaintiff's counsel. 9. Because one of the plaintiffs spoke to one of the jurors during the progress of the cause without the permission of the court. 10. The defendant was surprised by the testimony of Samuel Atchison, and by the refusal of the court to permit the recall of Berry. In support of which reason the affidavits of Berry and Lodwick are cited 11. Because defendant has learned, for the first time since the trial of the cause, that he can, if permitted, discredit Samuel Atchison and impeach his credibility as a witness.

The affidavits of Capt. Lodwick (who was owner as well as master of the Dr. F.), set out that he was surprised by the production of Samuel A. by the plaintiffs. That the plaintiffs announced that they had closed their case, and yet after the defendant had given evidence, the plaintiffs introduced Samuel A., who testified in a manner which surprised the said Lodwick exceedingly, and that said Lodwick is positive that A. was mistaken, and that Berry never did state what A. said he did. The affidavit of Berry merely reiterates what he said as a witness, and states that he would have repeated his statement, if allowed to testify after A., and would have contradicted A. He states nothing in his affidavit that he did not state before as witness. The court overruled the motion for a new trial. The defendant filed his bill of exceptions and appealed to this court.

SPALDING & SHEPLEY, for Appellants.

1. The court erred in excluding the testimony of Berry, who had been examined for the defendant, and in such examination stated that he “never had said to A.'s nephew that he had rung the wrong bell or given the wrong signal.” The nephew was then called, and stated that Berry had told, him that the young man on board the Dr. F. had rung the wrong bell, and it threw them on the wrong side of the crossing; that the young man tapped the big bell only once when he wanted him to tap twice, so as to run to the left. The defendant then recalled Berry, and offered to examine him as to that conversation, and the court excluded him. 4 Cowen s R. 557, Iredson v. Blanchard, at page 565 is a decision, that when witness is introduced to impugn the testimony of another, by testifying to a conversation between them, the witness whose testimony is thus impugned may be recalled to contradict and explain. 1. It is necessary, for the purposes of justice, that the whole matter may come out, and the jury be enabled to form an opinion, that the witness in such cases should be recalled. 2. The first examination in regard to the supposed conversation is not evidence in the case. It is merely preliminary, in order to lay a foundation for the introduction of testimony impeaching his credibility. When the conversation has been detailed in all its circumstances, and his mind refreshed, it is fair to give him the opportunity of explaining or denying, and it would be very satisfactory to a jury. 3. This rule of examination of a witness is based on two reasons: one is regard to the feelings and character of the witness, and the other is that the jury is thus more likely to be instructed as to the real state of the facts. Now, both of these reasons required the witness to be...