Lee Line Steamers v. Robinson

• Citation: 218 F. 559
• Decision Date: 13 November 1914
• Docket Number: 2481.
• Parties: LEE LINE STEAMERS v. ROBINSON.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

218 F. 559

LEE LINE STEAMERS v. ROBINSON.

No. 2481.

United States Court of Appeals, Sixth Circuit.

November 13, 1914

W. D Kyser, of Memphis, Tenn., for plaintiff in error.

L. B Phillips, of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

It is sought to reverse a judgment entered in the court below upon a verdict rendered in favor of Robinson; and we shall refer to him as plaintiff, and to the Lee Line Steamers, a corporation, as defendant. The declaration is a simple narrative, contained in a single count, alleging in substance that defendant owns and operates the steamboat Rees Lee on the Mississippi river between Cairo and Memphis, and is engaged in the transportation of freight and passengers for hire; that on September 25, 1912, plaintiff was a passenger on this boat, going from Cairo, Ill., to Bessie, Tenn.; that in the course of the trip, and as the boat was approaching Hickman, Ky., while plaintiff was demeaning himself in a proper manner, he was negligently, wrongfully, willfully, and maliciously assaulted with a knife, or some sharp weapon or instrument, by one of the employes of defendant, whereby he was permanently injured; and that this employe was a 'dangerous and violent man,' of which defendant had knowledge at the time of his employment.

Defendant first filed a plea of not guilty, and later introduced a plea of justification, to the effect that the assault complained of was made by its employe in self-defense; that at the time of the trouble plaintiff was advancing toward the employe 'in such a threatening manner as to lead a reasonably prudent man to believe that the force used by him was necessary, in self-defense; and that plaintiff was the aggressor' and the 'difficulty was a personal altercation' between plaintiff and the employe. Plaintiff joined issue on this plea.

Unless the two pleas must be regarded as inconsistent, a question we consider later, then under the pleadings alone plaintiff was a passenger on defendant's boat and was there injured by defendant's employe. Plaintiff and this employe, one Tillman, are colored men, and (according to the evidence) a place on the boat, called the 'monkey deck,' was set apart for colored passengers; and the freight deck was assigned to such employes as Tillman, called 'roustabouts.'

The theory of the case as presented by plaintiff at the trial was, in material part, that Tillman was a dangerous and violent man, and defendant knew this at the time it employed him; that the monkey deck was overcrowded, and in consequence many of the colored passengers were compelled and permitted to seek accommodations on the freight deck, and, while plaintiff was standing in the gangway (about four feet in width) of the freight deck, Tillman and other roustabouts were called by their superior to gather freight for discharge at Hickman; that Tillman in abusive language and with a vile epithet ordered plaintiff out of the gangway, but, plaintiff not heeding the order or moving as quickly as Tillman thought he should, Tillman without cause stabbed plaintiff in the abdomen and so seriously and permanently injured him.

The theory of the defense presented at the trial in substance was that Tillman is a quiet and inoffensive man, and he with plaintiff and others were engaged in a game of craps on the monkey deck, when Tillman was called to the freight deck to get the freight ready for Hickman; that, Tillman having won most of the money and started to the freight deck, plaintiff with a knife in his hand followed him to the gangway of the deck and abused and threatened him, and finally struck Tillman on the head with a piece of wood, whereupon, as Tillman testified, 'I cut him to keep him from cutting me.'

The evidence offered in support and denial of these theories was conflicting, and the contention for reversal is limited to claims of material errors committed in the course of the trial and in the charge of the court. The first assignment presented is that the charge erroneously placed the burden of proof upon the defendant. Defendant relies on this portion of the charge:

'When the plaintiff has proven that he was a passenger on the boat and that he was injured, that makes a prima facie case, and he is entitled to a verdict, unless the defendant proves by the greater weight of the evidence that the injury which he sustained was not caused by its negligence or want of care.'

This must, of course, be read in connection with the whole charge; and it must be construed, also, with reference to the evidence. Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282, 289. This language is immediately preceded by the statement, of which no complaint is made, that 'cases of passengers against carriers are not controlled by the same rules as in cases of suits against carriers for damage to property,' and is directly followed by a statement, which is undoubtedly true, that 'it is undisputed in this case that the plaintiff was a passenger, and that while a passenger he was disemboweled by a knife in the hands of the servant of defendant company. ' Then the question is put whether defendant has 'shown by a preponderance of the evidence that it was not liable for the injury,' and thereupon the charge proceeds at length to state the issues and to instruct the jury how rightly to consider and apply the testimony touching the various aspects of each of the theories upon which it was offered.

For example, the first issue so treated was the one involving the duty of defendant respecting the employment of such servants (manifestly roustabouts) as it placed on board and brought into direct contact with passengers. No complaint is made of the rule of law stated in respect of that issue, nor of the mode of submitting to the jury the facts claimed by each party, which would, on the one hand, render the company liable, and, on the other, relieve it of liability; and so the charge continues step by step to the end though some features other than the question of burden of proof are said to be erroneous, and we shall as far as necessary consider those features presently.

Before doing so, we should add that plaintiff in opening his testimony did not content himself with proving that while a passenger he was injured by defendant's servant, with a view of offering the rest of his testimony by way of rebuttal. Plaintiff offered all his testimony relating to the circumstances attending the injury; and while it is not claimed that we should weigh this evidence, it may properly be said that it is substantial and persuasive. Indeed, without questioning its prima facie effect, defendant endeavored to meet the merits of the case so made by producing its testimony. It is not pretended that the defendant was entitled to an instructed verdict, at either the close of plaintiff's evidence or of all the evidence.

Why, then, should not a presumption of negligence have been indulged against defendant, casting upon it the burden of showing that it was not in fault? We have seen that defendant filed two pleas, one of not guilty, and the other of justification. It is true that, where the law authorizes a defendant to set up several pleas, he may use each plea in his defense, and the admissions unavoidably contained in one cannot be used against him in another. Glenn v. Sumner, 132 U.S. 152, 157, 10 Sup.Ct. 41, 33 L.Ed. 301. But this is so only where the defenses so made are inconsistent. Smith v. Gale, 144 U.S. 509, 524, 12 Sup.Ct. 674, 36 L.Ed. 521. In the instant case the defenses are not inconsistent; the denial of the first plea is explained and necessarily qualified by the second; in the latter the defendant adopted the act of its servant as its own and as one of self-defense; and if that had been shown to be true it would have relieved the defendant and its servant alike of liability. N.O. & N.E. Railroad Co. v. Jopes, 142 U.S. 18, 25, 27, 12 Sup.Ct. 109, 35 L.Ed. 919. Now, under the pleadings and the concurring testimony produced by the parties, the case stood thus: Passenger and carrier, and injury to the former inflicted with a knife by a servant of the latter in the gangway of the freight deck, at a time when this servant and others of his class were on that deck under special call to the performance of duty, with an issue only as to blame for the injury; and it is constantly to be remembered that upon this issue the defendant was seeking through a plea of self-defense to excuse its failure to perform the high degree of care and duty it was under to protect plaintiff throughout his journey against misconduct and assault on the part of its servants. Steamboat Co. v. Brockett, 121 U.S. 637, 646, 647, 648, 7 Sup.Ct. 1039, 30 L.Ed. 1049; Pendleton v. Kinsley, 3 Cliff. 416, 421, 426, 427, Fed. Cas. No. 10,922, per Justice Clifford, sitting as Circuit Justice; Alabama City, G. & A. Ry. Co. v. Sampley, 169 Ala. 372, 377, 53 So. 142.

If the plaintiff had been injured through some defect in the machinery, appliances, or the like, used by defendant in navigating the boat, or in the boat itself, or through collision of this boat with another navigated by defendant there would be no doubt that evidence similar in its relation to such objects or collision to that of the evidence concerning the issues presented here would have given rise to a presumption of negligence in defendant, and have exacted of it an explanation sufficient in law to acquit it of blame, for the rule is true as well with respect to carriers of passengers upon water as upon land; and this is shown, not only explicitly by decisions, but also in a striking way by the common use that is made in the decisions of all classes of passenger cases, regardless of the...