Galena, Dunleith & Minnesota Packet Co v. Vandergrift

• Decision Date: 31 March 1863
• Citation: 34 Mo. 55
• Parties: THE GALENA, DUNLEITH AND MINNESOTA PACKET COMPANY, Appellant, v. JACOB VANDERGRIFT et al., Respondents.
• Court: Missouri Supreme Court

34 Mo. 55

THE GALENA, DUNLEITH AND MINNESOTA PACKET COMPANY, Appellant,

v.JACOB VANDERGRIFT et al., Respondents.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Court of Common Pleas.

The following instructions, asked for by appellants, were given:

1. If the jury find from the evidence that, by the customs of the upper Mississippi river navigation in regard to steamboats, at the time of collision the Royal Arch was in a place where she was entitled to run as an ascending vessel, and that she was on the eastern side of a channel that runs down on the Iowa side when the Empire City came in sight; that the pilot of the Royal Arch signalled for the starboard at a proper distance, and continued her course on the eastern side of said channel according to her signal, leaving the whole of the main channel of the river on her larboard for the Empire City to run in; that the Royal Arch ran slowly up stream, close to the upper bar on the Illinois side, passing the towhead, and going off to the right towards the Illinois shore; and if the jury find from the evidence that the Empire City was descending the river, and was not in her proper place as a descending vessel immediately before and at the time of collision, and that the exercise of reasonable skill on the part of the pilot and officers of the Empire City in regard to keeping her in the channel, or in regard to obeying or giving the signals, would have avoided the collision; and that no act was done by the pilots or officers of the Royal Arch to mislead the pilot or officers of the Empire City, or to produce the collision, and no reasonable precaution omitted to avoid it, then the jury is authorized to find for the plaintiffs and to assess its damages at the amount it cost to raise and repair the Royal Arch, with interest thereon from the time of suit brought.

2. If the jury find from the evidence that the printed rules of October 29, 1852, were in force as rules of navigation in May, 1856, then, so far as they are applicable to the circumstances of the collision, the position of the vessels, the giving of signals, the place where either vessel ought to run, and the manner in which their engines should be worked, they were and are binding upon the pilot and officers of the Empire City and Royal Arch; and if the jury believe from the evidence that, by the said rules of navigation, the Royal Arch, at the time of collision, was in the place she was entitled to be in as an ascending vessel; that she blew one blast of her whistle for the starboard at a proper distance from the Empire City, and run under slow bells up stream according to her signal, and that she was on the eastern side of, and out of, the main channel on the Iowa side, immediately before or at the time of collision; and if the jury further find from the evidence that, by said rules of navigation, the Empire City was not in her proper place as a descending vessel immediately before and at the time of collision, and that the exercise of reasonable skill on the part of the pilot and officers of the Empire City would have avoided the collision, and that no act was done by the pilot or officers of the Royal Arch to mislead the pilot or officers of the Empire City, or to produce the collision, and that the pilot and officers of the Royal Arch exercised reasonable skill on their part to avoid the collision, then the jury is directed that they should find a verdict for the plaintiff, and assess the damages at the amount it cost to raise and repair the Royal Arch, with interest thereon at six per cent. per annum from the time of suit brought.

3. If the jury find from the evidence that the pilot of the Royal Arch made a signal, at a proper distance below the Empire City, for the starboard, and heard only one signal from the Empire City in answer for the starboard, and at the time of said signal being given and answered the Royal Arch was on the eastern side of the channel running down the Iowa side, then the pilot of the Royal Arch was entitled to run his boat on the said eastern side of the channel by the rules of navigation adopted October 29, 1852, and to keep to the right of said channel going up stream, and the said pilot of the Royal Arch did not have any right to cross the said channel to the Iowa shore after making said signal. If the jury find from the evidence that the Empire City, coming down, was so near that it would be possible for a collision to ensue therefrom; and if the jury should find from the evidence that the Royal Arch was not stopped and backed in proper time; yet if the jury further find that the failure of the Royal Arch to stop and back did not contribute substantially to produce the collision, and that the collision was substantially occasioned by the Empire City leaving the channel, and running out of it in the direction of the Royal Arch, and that the Royal Arch was in her proper place at the time of the collision for an ascending vessel, then the jury will find a verdict for plaintiff.

6. If the jury should believe from the evidence that the pilot or officers of the Royal Arch were in fault in any respect, and that such fault did not substantially tend to produce the collision, and that the collision was substantially produced by the fault, negligence or misconduct of the pilot or officers of the Empire City, then the jury should find for the plaintiff.

7. If the jury find from the evidence that, by the customs and rules of the navigation of the upper Mississippi river at the time of the collision, the Royal Arch was in the proper place for an ascending vessel, and that at the time of collision the Empire City was not in her proper place as a descending vessel, and that the exercise of reasonable care and skill on the part of the pilot and officers of the Empire City would have avoided the collision, and that no act was done by the pilot or officers of the Royal Arch to mislead the pilot or officers of the Empire City, or to produce the collision, and that the pilot and officers of the Royal Arch exercised reasonable skill and precaution on their part to avoid the collision, then the jury are authorized to find for plaintiff.

8. If the jury find from the evidence that, at the time of collision, the Empire City was loaded in a negligent, unskilful or improper manner, and that, by reason thereof, she could not be handled and managed by her pilot with the same ease and facility as if she had been properly loaded; and that, but for that fact, the collision might, with the exercise of reasonable skill and care, have been avoided; and the fact of her being so negligently, unskilfully or improperly loaded contributed directly and substantially to produce the collision and sinking of the Royal Arch; and that the Empire City was not in her proper place as a descending vessel; and that there was reasonable care and skill used on the part of the pilot and officers of the Royal Arch to avoid collision; and that the Royal Arch was in a place where she was entitled, by the rules of navigation, to run, when the collision happened, then the jury is instructed to find a verdict for the plaintiff, and...