Cuddy v. Horn
| Decision Date | 12 October 1881 |
| Citation | 46 Mich. 596,10 N.W. 32 |
| Court | Michigan Supreme Court |
| Parties | CUDDY v. HORN. |
The rule by which one who rides in a private conveyance is presumed to control or be identified with the driver and to have no right of action for any injury done him by a collision caused by the driver's negligence, cannot apply to passengers in public conveyances, such as railway cars or steamboats, even though they have chartered the conveyance.
The master of a vessel cannot relieve himself of responsibility for its safe management by surrendering its control to a charterer.
Where a passenger in a conveyance can have no control over those in charge of it, he cannot be held to be so identified with them as to be considered a party to their negligence.
Passengers on a steam-yacht chartered for their use, but not under their control in matters of navigation, have a right of action against its owners for injuries caused them by the negligent management of those in charge of it.
An act wrongfully done by the joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable either jointly or severally.
If a passenger upon one vessel is injured by its collision with another in consequence of the negligence of the officers of both, he has a right of action against them jointly, and it is for the jury to fix the liability where it belongs.
Where evidence tends to make out a case for the plaintiff, its force and effect is for the jury, and the supreme court will not attempt to review or weigh it.
The limited liability act of congress exempting ship-owners from personal liability for injuries caused by the negligence of those in charge of their vessels, does not apply to boats navigating streams connecting the great lakes.
Error to superior court, Detroit.
Alfred Russell, James Caplis, Henry M. Campbell and Henry M. Duffield, for plaintiff in error.
Wisner & Speed, for defendant in error.
The following statement of facts taken from the briefs of counsel for the defendants is sufficiently full and accurate for a definite understanding and discussion of the legal questions raised. The action was commenced by the plaintiff as administrator of the estate of John Kelley, deceased, to recover damages on account of his death caused by a collision between the steamer Garland, of which the defendant Horn was owner, and the steam-yacht Mamie, owned by the other defendants, on the Detroit river, July 22, 1880. The declaration alleged in substance that the Garland was going down the river upon a pleasure excursion and the Mamie was coming up, returning from a pleasure excursion, and that Kelley was a passenger on the Mamie; that by failure of the master of the Garland to keep a proper lookout and by his failure to give proper signals at the proper time upon the approach of said Mamie, as required by rule 3 for the government of pilots, and by reason of the failure of the master of the Mamie to give the proper signals to indicate upon which side she would pass, until the vessels had approached so near that a collision was inevitable, and by reason of the failure of the owner and master of the Mamie to keep a proper lookout upon said Mamie, said vessels collided, and said Mamie sank, causing the death by drowning of said Kelley.
The defendant Horn and the other defendants filed separate pleas of the general issue. The owners of the Mamie also filed a plea in abatement, alleging that proceedings had been commenced and were then pending in the district court of the United States by them as owners of the Mamie for the purpose of taking advantage of the statute of the United States limiting the liability of vessel-owners in certain cases. And special notice of such proceedings was also given with the plea of the general issue.
A trial was had upon this plea, and a verdict, by direction of the court, rendered for the plaintiff thereon, and the trial thereupon proceeded upon the plea of the general issue, and a verdict was rendered in favor of the defendants. The case comes here on writ of error, and the points relied upon by the defendants will be considered in order.
The position taken by defendant Horn was that the plaintiff's intestate was a passenger on the Mamie at the time of the alleged collision, and the Mamie having contributed to the collision plaintiff's intestate must in law be held to have been so identified with those in charge of the yacht that he could not have recovered if he had survived, for an injury suffered by him occasioned by such collision, and that under the terms of the chartering or hiring of the yacht he could not have recovered for an injury so received.
It appeared that Rev. A.F. Bleyenberg had chartered the steam-yacht Mamie to carry a party of altar boys and others, 21 in all, and 14 of them from 11 to 15 years of age, from Detroit to Monroe and back, for which he was to pay $20, and that the yacht was in charge of the master and engineer thereof placed there by the owners. At the time of chartering the yacht it was stated that there would be about 20 persons to go on the trip, but no limit was placed upon the number, or as to the route to be taken, in going to and returning from Monroe.
It has not and could not be claimed that young Kelley had any authority or control whatever over the master or engineer of the yacht, or that he could have changed or directed the movements of the yacht in even the slightest degree. And while Father Bleyenberg, we may assume, could and did have charge of the yacht, as to the time of starting, the number of passengers and such like, yet as to the due and proper management of the vessel, the steam she should carry, the speed at which she should be run, the course she should take within certain limits, the rules she should observe in meeting and passing other vessels, the lights she should carry, in a word the...
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