Coney Island Co. v. Dennan

• Decision Date: 19 January 1907
• Docket Number: 1,568.
• Citation: 149 F. 687
• Parties: CONEY ISLAND CO. v. DENNAN.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F. 687

CONEY ISLAND CO. v. DENNAN.

No. 1,568.

United States Court of Appeals, Sixth Circuit.

January 19, 1907

Chas H. Stephens and Lawrence Maxwell, Jr., for plaintiff in error.

C. C Benedict and J. Hartwell Cabbell, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

This was an action brought by the administratrix of Clarence M Henry to recover damages for wrongful negligence of the defendant, resulting in the death of the person whose representative she is. It is founded upon a statute of Ohio giving a remedy in such cases for the benefit of the relatives of the deceased who have suffered pecuniary loss from the death.

The circumstances out of which the cause of action is supposed to have arisen are these: Coney Island is a pleasure resort a few miles up the Ohio river from the city of Cincinnati. The Coney Island Company is a corporation organized under the laws of West Virginia, and was in 1904 the owner of the Island Queen, a steamboat plying between the city and the resort during the summer months of that year for the carriage of passengers. At the landing at the city, for the purpose of embarking and discharging passengers, the company had a wharfboat, over which passengers passed from the landing to the steamer and from the steamer to the landing. On the afternoon of August 26, 1904, the deceased, who was a boy of about 12 years of age, with his mother and a sister of hers and two young children of the latter, took passage on the steamer from the city to the resort, and, after spending some time there, returned to the city on the last trip of the steamer for that evening. This was about half past 11 o'clock. The mother, her sister, and the children passed together from the steamboat toward the wharfboat. Both vessels at the passageway were much crowded. The mother was carrying one of the small children and her sister the other. The boy, Clarence, was by the side of his mother. Having difficulty in getting along in the crowd, his mother told Clarence that if he should get separated from her he should wait for her on the wharfboat. This was while they were nearing the wharfboat and moving slowly. In front or somewhat to one side of their course was the gangway or bridge for crossing from the steamer to the wharfboat. There was an opening in the railing around that side of the steamer of about nine feet, and in the middle of this was the bridge, about three feet wide, and having rails on each side to prevent people from falling off. This bridge was movable, and when in use rested partly on the steamer and partly on the wharfboat, and was intended to provide passageway from one vessel to the other. There was an open space of about three feet on each side of the bridge, extending to the post at the end of the railing. The vessels were near together, but there was an opening down between them of the width of from 7 to 20 or 24 inches, as estimated by different witnesses. Soon after the mother's direction to the boy, above stated, he got separated from his companions. He followed a lady who went over the opening at one side of the bridge, but in some way lost his footing, fell down through the opening, and was drowned. There was evidence tending to show that the crowd was dense about the gangway, moving in a mass. The sister of the boy's mother testified: 'We had just to move with the crowd; we couldn't get one way or the other. ' More than 1,000 people, men, women, and children, were on the steamer. The boy was bright and capable beyond his years, but neither he nor his mother had ever been on a steamboat before. The evidence tended to show that the bridge was liable to get misplaced from the rocking and listing of the boats, and that the wide opening in the railing was to accommodate the changing relation of the boats, and that the company kept a guard of from two to four men around the bridge to keep it in position, and also to keep passengers from going over the openings at the sides of it. But there was also evidence that on this occasion either there were no guards there, or, if there were, they did not stop or warn passengers who crossed at the sides of the bridge. We have stated the case in this detail because of the contention that the court erred in not instructing the jury to find for the defendant. The jury found a verdict for the plaintiff, and assessed the damages at $4,000.

Counsel for the plaintiff in error submit four questions for our consideration on this review:

(1) Whether the court erred in refusing to give the peremptory instruction asked. (2) Whether the court erred in its instructions in stating the nature of the contributory negligence of the plaintiff which would bar the recovery. (3) Whether the court erred in refusing to charge the jury that, 'if there was an open space between the boat and the wharfboat, which might have been seen by Clarence Henry if he had used reasonable care while leaving the boat, and you find that he walked or fell into such open space for want of reasonable care, the plaintiff cannot recover.' (4) Did it err in refusing to instruct the jury that:

'The plaintiff, the mother of the deceased, was bound to exercise ordinary care under all the circumstances for the protection and safety of her son; and if she failed to do so, and her failure in any way contributed to her son's loss, then she cannot recover herein.'

1. In view of the facts (those either not disputed or such as the jury might find from the evidence) we think there were grounds upon which the jury might conclude that the company was at fault in not providing more ample means for safely passing from the steamer to the wharfboat. There was a large crowd of passengers, many of them women and children, and the bridge was narrow. The boats were so near together as to tempt the unwary, the bridge being crowded, to pass over at the opening by the sides of it, and yet there was danger, as the sequel showed, that passengers might by a false step fall down through the opening. That there was danger of it, which the company itself appreciated, is shown by the fact that its practice was to station guards there, whose duty it was to see that passengers did not pass between the bridge and the end of the railing; but more especially, because the passage in that way was dangerous, and the company owed a duty to its passengers to maintain a guard there, to prevent accidents which were liable to happen from attempts to pass over the open space, and the evidence, as we have said, tended to show either that the guards were not stationed, or, if they were, they did not attend to their duty in this regard, and that the accident resulted from this fault. With respect to the contributory negligence charged by the defendant, we shall have more to say further on. We think it would have been palpable error for the court to have charged the jury that the evidence would not justify a finding that the defendant was negligent in the discharge of its duty to the deceased.

2. In his charge to the jury, the presiding judge, after referring to the circumstances of the accident, and coming to the subject of the contributory negligence of the boy, wherewith he was charged by the defendant, said:

'In view of all these conditions that I have attempted hastily to sketch, and which you must carry in your minds, did that boy, at that time, know and appreciate the danger, if he attempted to step from the boat over to the wharfboat, of falling into the river? Do the conditions presented require or justify that conclusion? If he, for the sake of getting over to the wharfboat ahead of the great body of people on board who were pushing over the bridge, took the risk, then it was his own negligence that caused him to fall into the river; but if he did not appreciate it, if because of his age he did not understand and did not appreciate the danger, but believed that he could pass in safety, that he might follow the woman who was passing over, and he was not advised to the contrary, then you would not be warranted in saying that he assumed the risk, or that he was negligent in following the woman over to the wharfboat in that way-- the woman who preceded him.'

And in varying forms of expression this instruction was several times repeated in the course of the charge. The complaint made of this instruction is that it supplied a wrong test of the negligence of the boy, and that the court, instead of instructing the jury that his negligence depended upon his actual appreciation of the danger, should...