Carscallen v. Coeur D'Alene & St. Joe Transportation Co., Ltd.

• Decision Date: 24 November 1908
• Citation: 15 Idaho 444,98 P. 622
• Court: Idaho Supreme Court
• Parties: ERNEST J. CARSCALLEN and ALBERT B. CARSCALLEN, Copartners, Doing Business Under the Firm Name of CARSCALLEN BROS., Respondents, v. COEUR D'ALENE & ST. JOE TRANSPORTATION COMPANY, LTD., a Corporation, Appellant

98 P. 622

15 Idaho 444

ERNEST J. CARSCALLEN and ALBERT B. CARSCALLEN, Copartners, Doing Business Under the Firm Name of CARSCALLEN BROS., Respondents, v. COEUR D'ALENE & ST. JOE TRANSPORTATION COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

November 24, 1908

PLEADING NEGLIGENCE-EXPERT TESTIMONY-NAVIGATION-SHOWING SIGNAL LIGHT-REASONABLE DILIGENCE-STATEMENT OF PILOT SUBSEQUENT TO COLLISION-MEASURE OF DAMAGE BY COLLISION-PROFITS DURING REPAIR-CONTRIBUTORY NEGLIGENCE.

1. A complaint for damages which charges the ultimate facts necessary to be established for recovery is sufficient.

2. There is no fixed and invariable rule established by which a trial judge shall determine the exact degree and amount of knowledge, experience and skill an expert shall possess before permitting him to testify before the jury. His competency to testify must be determined by the court.

3. The weight and credibility of the evidence of an expert witness given to the jury is to be judged solely by them, and such weight and credence will be given it by the jury as they think it justly entitled to, and if it runs counter to their convictions as to the truth of the matter in the exercise of their own judgment, they may disregard it entirely.

4. In an action for damages caused by a collision between two boats, the test of negligence is not that the pilot might have done any one of a number of things other than what he did do under the particular circumstances and thereby avoided the accident, but rather was he negligent and careless in doing the particular thing he did do at the time and under the circumstances as they confronted him.

5. In determining the negligence of a steamboat pilot in the case of a collision, his acts and conduct must be judged in view of the dangers, emergency and conditions as they surrounded him at the time and place, when and where, the accident occurred.

6. Where the plaintiff on cross-examination of the pilot on defendant's steamer asked the witness if he did not, at a specified time and place subsequent to the collision, and in the presence of certain witnesses, say: "I did not know anything about running the 'Idaho,' and I told them so, and they forced me into it," and the witness denied ever making such a statement, and the plaintiff in rebuttal produced the persons supposed to have been present who testified over defendant's objection that the pilot had made such statement, and the action of the court in admitting such evidence is assigned as error, and it appears from the evidence in the record as to the actual facts constituting the negligence that the verdict could not have been different from what it was; Held, that it is unnecessary for the court to determine the admissibility of such evidence.

7. Where there is no statute, municipal ordinance, port or harbor regulation requiring the displaying of a signal light on a steamer, vessel or craft at particular times or under given circumstances, it is not negligence per se not to display such light, but the necessity will be a question of fact to be determined by the jury under the particular facts and circumstances of each separate case.

8. Where a vessel is moored in a place of usual and ordinary safety and where but few vessels are plying, and at a point where other vessels are not likely to be running, and out of the way of incoming and outgoing vessels, and there is no law or harbor rule or regulation requiring the displaying of a signal, it is not negligence to fail to display such light.

9. Where a combination steamboat and pile-driver is shown to have been engaged in regular work and to have had such employment as would have kept it employed until the bay in which it was working froze up, and it appears clearly and satisfactorily what its net earnings were per diem at the time, it is not erroneous in an action for damages caused by a collision to allow the owners of the injured vessel to recover the per diem shown to have been its net earnings for the number of days the vessel was being raised and was undergoing repairs.

10. Where the instructions requested by defendant on the subject of contributory negligence were involved, misleading and erroneous, and were rejected by the court, and the court on its own motion instructed the jury that in order to find for the plaintiffs they must be satisfied that the defendant caused plaintiffs' boat "to sink without any fault on the part of the plaintiffs or either of them"; Held that the instruction is sufficiently favorable to defendant on the question of contributory negligence, in the absence of a request by defendant for a correct instruction on contributory negligence.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for the county of Kootenai. Hon. W. W. Woods, Judge.

Action by plaintiffs for damages caused by a steamboat collision. Judgment for plaintiffs and defendant appealed. Judgment affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

Robt. H. Elder, and Chas. L. Heitman, for Appellant.

There is no sufficient allegation of negligence or unskillfulness or misbehavior in the complaint. (Trans., fol. 1594, 1595; 6 Thompson on Negligence, sec. 7452; San Antonio etc. R Co. v. Stolleis (Tex. Cr. App.), 49 S.W. 679.)

An opinion is entitled to no weight with the court or jury, and should not be admitted unless it comes from a person who has given satisfactory evidence that he is possessed of such experience, skill or science in the particular subject of inquiry as entitled his opinion to pass for scientific truth. (Carr v. Northern Liberties, 35 Pa. 324, 78 Am Dec. 342; Graney v. St. Louis etc. R. Co., 157 Mo 666, 57 S.W. 276, 50 L. R. A. 153; 6 Thompson on Negligence, sec. 7753.)

If the facts of any particular inquiry can be so placed before the jury that as men of ordinary intelligence they can fully understand the matter and draw the proper inferences and conclusions therefrom, the opinions and conclusions of a witness, whether an expert or a nonexpert, should not be received. (6 Thompson on Negligence, sec. 7747; Richardson v. Eureka, 96 Cal. 443, 31 P. 458; Shafter v. Evans, 53 Cal. 32; Sonnefield v. Mayton (Tex.), 39 S.W. 116.) In determining the liability for a collision, what the respective boats might have done to avoid a collision is not the proper test. ( Goslee v. Shute, 18 How. 463, 15 L.Ed. 462; The Nevada, 106 U.S. 154, 1 S.Ct. 234, 27 L.Ed. 149; The Grace Girdler, 7 Wall. 196, 19 L.Ed. 113.)

By the established principles of maritime law, a vessel that anchors where vessels are passing, or near where vessels are passing, is in fault, unless she shows at night a signal light. ( Brig James Gray v. The Fraser, 62 U.S. 184, 16 L.Ed. 106; The St. John, 54 F. 1015, 5 C. C. A. 16; The Scioto, F. Cas. No. 12,508; The Indiana, F. Cas. No. 7020; Stiles v. Stevens, F. Cas. No. 13,443; The Clara, 102 U.S. 200, 26 L.Ed. 145.) Failure to exhibit lights in accordance with custom, though no positive rule requires a light, will render a vessel at fault. (Shields v. Mayor etc. City of New York, 18 F. 748; The Oliver, 22 F. 848; The Alabama, 26 F. 866.)

A vessel will be held at fault for failure to show a light when common prudence demands that a light should be carried. ( Carsley v. White, 21 Pick. 254, 32 Am. Dec. 259; Meigs v. The Northerner, 1 Wash.Terr. 78; The Senator, 1 Cal. 459, 54 Am. Dec. 305; Simpson v. Hand, 6 Whart. 311, 36 Am. Dec. 231.)

The burden is upon the complainant to show not only that their lights were burning, but also that the weather was such that they could be seen a sufficient distance to avoid the collision. (Florence P. Hall, 14 F. 408; The Titan, 23 F. 413, 23 Blatchf. 177; Culbertson v. Steamer Southern Belle, 59 U.S. 584, 15 L.Ed. 493.)

The measure of damage for case in collision is the injury sustained or loss of repairs. The loss of profits is too remote and conjectural. (Finch v. Brown, 13 Wend. 601; The City of Alexandria, 40 F. 697; The Cayuga, 81 U.S. 270, 20 L.Ed. 828.) The measure of damage for a collision is the reasonable cost of repairing and of hiring another boat during the time of making repairs, not exceeding, at any time, the value of the boat. (The Baltimore, 8 Wall. 377, 19 L.Ed. 463; Williamson v. Barrett, 13 How. (U.S.) 101, 14 L.Ed. 68; The Granite State, 70 U.S. 310, 18 L.Ed. 179.)

In an action for damages where the complaint alleges that the injuries were caused by negligence of the defendant, and the answer charges contributory negligence, it is error for the court to omit all reference to this when instructing the jury. (Gamble v. Mullin, 74 Iowa 99, 36 N.W. 909; Owens v. Owens, 22 Iowa 274; Hill v. Aultman, 68 Iowa 630, 27 N.W. 788; Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218.) An instruction is not only affirmatively erroneous, but fatally defective, that did not submit to the jury the question whether the plaintiff by his negligence contributed to the loss. (Hackford v. New York C. Ry. Co., 6 Lans. 381; Chicago & A. R. Co. v. Mock, 72 Ill. 141.)

The court should have instructed the jury that the profits accruing to the respondents by reason of work which they were prevented from doing by said collision is too remote and conjectural, and not the proper measure of damage. (The City of Alexandria, 40 F. 697.)

R. E. McFarland, for Respondents.

In actions for negligence, the plaintiff need not set out the specific acts constituting the negligence complained of or alleged, but ultimate facts. (McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; 14 Ency. Pl. & Pr. 333. 334.)

The fitness of a witness to testify as an expert is a question of fact, addressed to the sound discretion of the trial court and such question is not reviewable on appeal,...