Higman v. Camody

• Decision Date: 16 June 1896
• Citation: 20 So. 480,112 Ala. 267
• Parties: HIGMAN v. CAMODY.
• Court: Alabama Supreme Court

20 So. 480

112 Ala. 267

HIGMAN v. CAMODY.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by H. C. Higman against M. S. Camody to recover damages for injuries to a barged hire by defendant. There was judgment for defendant, and plaintiff appeals. Reversed.

This action was brought by the appellant, H. C. Higman, against the appellee, M. C. Camody, to recover damages for injuries to a barge owned by the plaintiff, which injuries were sustained while the barge was in the possession of the defendant, who hired the same from the plaintiff. Issue was jointed upon the plea of the general issue. The tendencies of the evidence are sufficiently stated in the opinion. Defendant testified to instructing Neville, when sent to hire the barge a second time, to agree to pay for the time only that it was in actual use. To the question calling this forth, plaintiff objected, because calling for the principal's instructions given in the absence of the other party, and because immaterial and irrelevant. Similar objection was made to the answer. Each objection was overruled, and the plaintiff separately excepted. After defendant's witness Smith had testified that this barge was weak in construction, by reason of not being strengthened by rift bolts, the heads of which are visible from the deck and that without them a barge is more liable to swag and open the seams than one supplied with the bolts, the court refused to allow plaintiff to ask him if greater care should not be exercised in loading a barge devoid of rift bolts than one supplied with them. To such refusal plaintiff duly excepted. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If danger to the barge existed, and those in charge knew of that danger, and if they, after this, placed and rolled heavy logs on and over the barge, such acts alone entitle the plaintiff to a verdict for all damage resulting from such acts, independently of whether the barge was otherwise carefully handled or not, and independently of whether the barge was at first in a bad condition or not." (2) "If the dangerous condition of the barge was obvious to Camody just prior to going after the last trip for logs, when it sank, and if it was apparent to him that the continuous use of the barge was likely to result in immediate disaster, and injury to the barge, it was his duty to desist from such further use thereof; and if he or any of his employés failed to do so, but persisted in such use of the barge, and thereby caused the barge to sink and be injured, then I charge you that he was guilty of negligence and your verdict must be for the plaintiff for all damages sustained thereby." (3) "If the barge was in danger of sinking, and such danger was manifest to those in charge of it, and if they afterwards continued to pile heavy logs upon it, and roll them across it, your verdict must be for the plaintiff, whether the barge was otherwise properly handled or not in loading." (4) "If the condition of the barge previous to its sinking, and the circumstances surrounding it, were such as to convince a reasonably prudent man that to load it with logs was dangerous, and would in all probability result in disaster to the barge, and defendant or his employés using the barge persisted in such use of the barge, and thereby caused the barge to sink and be injured then your verdict must be for the plaintiff for all damages thereby sustained." (5) "If the jury believe from the evidence that the barge had on the first trip sprung a dangerous leak, and this was known to Camody or his agents or servants in his charge, and after this Camody took the barge down the river, and partially loaded it with logs, so that one end of the barge was a foot lower in the water than the other, and if the barge was left in this condition for three days, in rainy and stormy weather, then I charge that such facts, if facts they be, constituted such negligence on the part of Camody or his servants or his employés as for the consequences of which he is liable to plaintiff in this suit." (6) "Although you may believe the barge was primarily in bad condition and out of repair, yet if it was in danger of sinking when unloaded of the first cargo of logs, and those in charge of the barge knew of such fact then taking the barge on a second trip for logs was negligence, for the injurious consequences of which, if any, you must find a verdict for the plaintiff, whether the handling of the barge was in all other respects careful and prudent or not." (7) "A continuance of the use of the barge after a dangerous leak was discovered, if such was discovered, would be negligence, for the consequences of which the party so using, or having the barge used, must respond in damages to the owner." (8) "If it became apparent to a reasonably prudent man that the condition of the barge was such that further use or loading thereof would result in additional injury to it, and if Camody after this continued to use it, and if such use caused it to sink and be injured and damaged, your duty is plain to find a verdict for the plaintiff." (9) "If Camody or his employés had notice that the barge was leaking or in a dangerous condition, it was their duty to use a higher degree of care and prudence in using the barge than if no such serious indications existed; and if the danger was so imminent as to threaten disaster, such as a submergence of the barge, it was their duty to desist from any such further use of it as would tend to enhance the danger." (10) "Camody was under no obligation to use the barge after it became unsafe, or when it became apparent to him that it was unsafe; but it was his right to return the same to the owner; and if, while in an obviously unsafe and dangerous condition, he and his employés continued to use the barge for a purpose and in a way that was manifestly dangerous under the peculiar circumstances of this case, and by reason of such use the barge was sunk and injured, your verdict must be for the plaintiff." (11) "I charge that the use of the barge for loading or hauling logs, after a knowledge of the dangerous leak, was negligence in and of itself." (12) "The act of going for a second load of logs after the discovery of a dangerous leak, if there was such a discovery, without trying to stop the leak or notifying Higman, if there was such a failure, was of itself negligence." At the request of the defendant, the court gave to the jury the following charges, and to the giving of each one of them the plaintiff separately excepted: (1) "Before the jury can find for plaintiff, they must believe from the evidence that Camody and his agents or servants failed to use ordinary care." (2) "Though the jury may believe from the evidence that defendant's servants and employés knew of the defective condition of the barge, yet, if he and his employés and servants used proper skill and care in its use, their verdict must be for the defendant." (3) "If the jury find from the evidence that Higman, before Camody got the barge, told him that the barge was all right, then Camody had a right to rely upon it, and presume the barge was in fact all right." (4) "If the jury find from the evidence that Camody, in using the barge, exercised just such prudence and care as a reasonably prudent man would have used about his own property, they must find for the defendant." (5) "Although the jury may believe that Higman hired the barge for only one trip, and that Camody was using the barge when it sunk without any contract, yet if they believe that Higman received pay for the barge on this trip, this was a ratification of the use of the barge by Camody, although Camody may not have had a contract for the use of the barge." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the rulings of the court upon the evidence, and the giving and refusal of the several charges asked.

E. W. Godbey, for appellant.

D. W. Speake and S. T. Went, for appellee.

McCLELLAN J.

The bailment involved in this case was...