Hayward v. Knapp

• Decision Date: 18 May 1875
• Citation: 22 Minn. 5
• Parties: ANTHONY J. HAYWARD <I>vs.</I> JOHN H. KNAPP & others.
• Court: Minnesota Supreme Court

22 Minn. 5

ANTHONY J. HAYWARDvs.

JOHN H. KNAPP & others.

Supreme Court of Minnesota.

May 18, 1875.

Appeal by defendants from an order of the district court for Winona county, Crosby, J., presiding, (sitting for the judge of the third district,) refusing a new trial.

Thomas Wilson, for appellants.

William H. Yale, for respondent.

BERRY, J.

The plaintiff was owner of a "brail" of sawlogs, which was moored to the west bank of the Mississippi river, a few miles above Winona. Defendants, who were engaged in running a raft of lumber down the river with a steamboat, ran into and against the brail, letting plaintiff's logs loose, so that they floated off and were scattered along the river and its shores and sloughs. For the damage thereby occasioned to him plaintiff brings this action.

Upon the trial it was ordered by the court that the jury take a view of the place where the collision occurred, that they be conducted thither in a body, in the custody of the sheriff, and that the place be shown to them by Silas Braley and W. W. Slocumb.

The principal issue in the case had relation to defendants' alleged negligence. Upon this issue, and with special reference to the general practicability of avoiding the collision, one important subject of enquiry related to the width and depth of the channel of the river at the place where the brail was moored. Upon the same issue, and with reference to the enquiry whether defendants exercised due care in endeavoring to avoid the collision after the plaintiff's brail was discovered, it was important to show how far above the place of the collision the steamboat was when its whistle was sounded as a signal for the men to go to their oars for the purpose of keeping defendants' raft away from plaintiff's brail.

It appears from Slocumb's affidavit that the jury were conducted to the place of the collision, which was pointed out to the jury by affiant and Braley; that Braley then and there stated to the jury that plaintiff's brail, at the time of the collision, extended out into the river about forty feet; that, in the presence of the jury, he measured out into the river, on the ice, 500 feet beyond the point to which (as he said) the brail extended, and he then and there stated to the jury that the channel of the river at that point, at the time of the collision, extended out for such distance of 540 feet. It further appears from the same affidavit that Braley then and there stated, in the presence of the jury, that def...