Leblanc v. Sweet

• Decision Date: 01 January 1901
• Docket Number: 13,930
• Citation: 107 La. 355,31 So. 766
• Court: Louisiana Supreme Court
• Parties: THEOVILLE LEBLANC AND WIFE v. DANIEL E. SWEET, ET AL

31 So. 766

107 La. 355

THEOVILLE LEBLANC AND WIFE v. DANIEL E. SWEET, ET AL

No. 13,930

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the eighteenth judicial district, parish of Acadia -- DeBaillon, J.

Story &amp Pugh and Thomas R. Smith, for plaintiffs, appellants.

Philip J. Chappuis (John D. Grace, of counsel), for defendants appellees.

OPINION

MONROE J.

Plaintiffs, who are husband and wife, sue Daniel E. Sweet, as owner, and Henry L. Sweet, as master, of the sternwheel steamboat "Olive," for damages, alleged to have been sustained by reason of the drowning, through the negligence of the defendants, upon the night of July 4th, 1898, of their minor daughter, Helen, a young girl of sixteen. The defendants deny that they were guilty of negligence, and allege that the death of the minor was brought about by her own imprudence.

It is beyond controversy that the plaintiffs reside upon the Bayou Queue de Tortue, twelve miles above the point at which it enters Mermentau river; that, reckoning from the same point, the town of Mermentau is situated about twelve miles up, and the town of Lake Arthur, upon a lake of that name, about six miles down, that river; that, upon the 4th of July, 1898, a young man named Valsin Stutes, with four young ladies, viz: his two sisters, Azelda and Elizabeth, Miss Amanda Aube, and Miss Helen LeBlanc, went, by skiff, from the LeBlanc residence to Lake Arthur, to participate in celebrating the day; that, at Lake Arthur, they met Adam Simon, who invited them to return, as his guests, as far as the mouth of the Bayou Queue de Tortue, on the steamboat Olive, which, at the close of the day, was to carry a number of excursionists from Lake Arthur back to the town of Mermentau, and that they accepted the invitation, and boarded the boat, by which their skiff was taken in tow; that, about ten o'clock that night, and on, or just before, reaching the mouth of the bayou, a "slow bell" was rung, Valsin Stutes got into the skiff, followed by his sister, Azelda, and Miss Aube, and then by Miss LeBlanc, and that, when Miss LeBlanc got in, the three young ladies were precipitated into the river, with the result that Miss LeBlanc was drowned.

With regard to other facts and circumstances, there is considerable conflict in the testimony. The theory propounded by the plaintiffs is, that it was understood between Adam Simon and the captain of the boat, that Simon and his friends were to be transferred, upon reaching the mouth of the bayou, to their skiff, and that, as they were about reaching that point, the boat was slowed down and the party were notified to get into the skiff, the bow of which was held alongside the boat by Harrington, the fireman, and the stern, by Sweet, who was acting in the double capacity of master and engineer, but that the boat, which had been making seven miles an hour, was only slowed to about half speed, and that its continued movement, the agitation of the water, and the consequent tendency of the skiff to get under the "guards" of the boat, rendered such a mode of transfer exceedingly dangerous, especially at night, and that the officers of the boat ought to have known, whilst Miss LeBlanc, and some other members of the party, having never before been on a steamboat, were ignorant of, the danger. The theory of the defense, upon the other hand, is, that it was the intention of the officers of the boat to make a landing upon the river bank, upon the lower, or down stream, side of the mouth of the bayou, and that whistles had been blown, signal bells rung, and the boat slowed down, with that view, but that the young ladies, of their own accord, or, at the instance of their escorts, and without the knowledge of the officers, undertook to get into their skiff, in the manner, and with the result, as stated.

Plaintiffs' theory is supported by the following positive and affirmative testimony, which we recapitulate, in substance, to-wit: Adam Simon testifies that his friends, having come, by skiff, from their homes, on the Queue de Tortue, to the town of Lake Arthur, he met them at the latter place; that the "Olive," having brought a party of excursionists (the witness among them) from Mermentau, and being about to proceed further on Lake Arthur, he took his friends on board, and, whilst on board, asked the captain if he would take them, as the boat returned to Mermentau and put them, and him, off at the mouth of the bayou, informing the captain that they had their skiff, asking him to tow it to the mouth of the bayou, and stating that they would there get into the skiff, from the boat, and thus reach heir homes; to all of which the captain gave his assent; that about ten o'clock that night, the party being on the boat, and the boat on the way to Mermentau, the pilot, or some one else connected with the boat, notified him that the mouth of the bayou was "right around the bend," and that he and his party had better get ready, and that he, accordingly, took the ladies down stairs, i.e., from the boiler, or cabin, deck, to the lower, or main deck, in order that they might be ready to get off; that Valsin Stutes got into the skiff, which was alongside, and held it, and that Harrington, the fireman of the boat, also held the skiff, at the bow, whilst Sweet, the captain, held it at the stern, and that Harrington said "get in"; that he, the witness, then turned to speak to some one near him and did not observe how the ladies got into the skiff, but that he heard a noise and found that they had fallen into the river, and that he and the captain pulled Miss Aube out, and took her to the engine room, whilst Valsin got his sister out; that he then found that Miss LeBlanc was missing, and he went into the water and swam around searching for her, but without success; that, at the moment of the accident, the boat was in the middle of the river (which is about one hundred yards wide), immediately opposite the mouth of the bayou, with her bow pointed straight up the river, and, though the engines had stopped, was still in motion, and "was driving pretty fast, so that Miss Aube's dress was flying through the water, and they had to pull to get her into the boat." The witness further testifies that the boat made no landing at the mouth of the bayou, but that, when the search for Miss LeBlanc was abandoned, he and his friends went off in their skiff.

Valsin Stutes testifies that no one told him that it was time to go, but that (knowing it himself, as we understand his testimony) he got into the skiff to bail the water out; that Harrington unfastened the skiff and held it, by a chain, at the bow, whilst Sweet held the stern, and that Harrington, twice, told the ladies to get in; that his sister, Azelda, and Miss Aube got into the after part of the skiff and Miss LeBlanc into the forward part, and that he is unable to say how the accident happened, save that the skiff tilted and they went overboard; that Sweet and Simon assisted Miss Aube out, whilst he helped his sister; that the boat was opposite the mouth of the bayou, moving slowly, though the engines had been stopped; and that there were some waves, making the water a little rough.

Mrs. Simon, who was then Miss Azelda Stutes, testifies, that she and the others went down to get into the skiff, at the suggestion of Adam Simon, and that they found two men holding the skiff, one, (whom she identified as Harrington) by a chain attached to the bow, and the other, (whom she identified as Sweet, but only from information obtained afterwards) holding the stern, and that Harrington, twice, told them to get in; that Valsin was already in the skiff, and that she was the first of the young ladies to get in, and was followed by Miss Aube, and, then, by Miss LeBlanc; and that, when the latter got in, the skiff tilted and they were precipitated into the water, from which she was taken by her brother and Simon, and Miss Aube, by Simon and another man. She testified that Miss LeBlanc was very heavy, and she gives it, as her opinion, that if Miss LeBlanc had gotten in easily they would not have been thrown out, though she also states that she and Miss Aube were standing and that there were some waves.

Miss Elizabeth Stutes testifies that she and the others went to the side of the boat, to get into the skiff, at the suggestion of Adam Simon, and that there was a man holding the bow of the skiff and another holding the stern, but she does not undertake to say who the men were. She further states that she was looking elsewhere and did not see who got into the skiff, or the order in which they got in; that her attention was attracted only when she heard them in the water, and that she did not see who took her sister and Miss Aube out.

The theory propounded by the defendants is supported by the following testimony, also given in substance, to-wit: Henry L. Sweet testifies that he was acting as both master and engineer of the "Olive"; that Simon had asked him to let his party off at Bayou Queue de Tortue, but had said nothing as to the manner of debarking, and that he is unable to say that he knew that they expected to get ashore in their skiff, but that he knew, because they told him, that they lived on bayou Queue de Tortue; that they did not take the skiff with them on the lake, but, on the return of the Olive to the town of Lake Arthur, and before starting to Mermentau he had it made fast to the port side of the boat, and was aware that it was being towed; that he notified the pilot that there were some ladies to be "let off," at the mouth of the bayou, and, whilst he did not tell him, in words, to make a landing directly on the shore, it was his intention that such a landing should be made, on the point on the lower side of the bayou;...