Lucius Stockton and Daniel Moore, Plaintiffs In Error v. Harriet Bishop

• Decision Date: 01 January 1846
• Parties: LUCIUS W. STOCKTON AND DANIEL MOORE, PLAINTIFFS IN ERROR, v. HARRIET BISHOP
• Court: U.S. Supreme Court

45 U.S. 155

4 How. 155

11 L.Ed. 918

LUCIUS W. STOCKTON AND DANIEL MOORE, PLAINTIFFS IN ERROR, v. HARRIET BISHOP.

January Term, 1846

THIS case was brought up, by writ of error, from the Circuit Court of the United States for West Pennsylvania.

There was no bill of exceptions signed by the judge, and the record presented the following appearance.

Among the rolls, records, and judicial proceedings of the Circuit Court of the United States, in and for the Western District of Pennsylvania, in the Third Circuit, may be found the following words and figures, to wit:——

Copy of Docket Entries.

McCandless, and Harriet Bishop, a citizen }

McClure & Biddle. of the State of Ohio, }

vs. } 18

Darragh, Loomis, Lucius W. Stockton and Dan- }

Mahon & Washington. iel Moore, citizens of Penn. }

Summons case, exit September 17th, 1842.

1842, November 4th, returned. Served by leaving a copy at the dwelling-house of, D. Moore, November 1st, 1842, and personally on L. W. Stockton, November 2d, 1842.

1843, Jan. 12th. Narr. filed.

1843, February 6th. On motion of Mr. Darragh, rule for security for costs.

1843, February 7th. Rule for security for costs returned, 'Served on Mr. McClure, February 7th, 1843.'

1843, April 5th. Consent of attorney for defendants, that a commission issue forthwith to take testimony on part of plaintiff, and declension to file cross interrogatories. (See paper filed.)

1843, April 5th. Interrogatories on part of plaintiff filed, and commission issued to Albert G. Westgate, Esq., of McConnellsville, Morgan county, Ohio, commissioner named by plaintiff.

1843, April 10th. Stipulation of John Sarber, as security for costs, filed.

1843, April 18th. Commission, with depositions taken before Albert G. Westgate, Esq., returned and filed.

1843, May 10th. Plea of defendants filed.

1843, May 10th. Agreement of attorneys filed.

1843, May 17th. Continued.

1843, October 5th. Subpoena on part of defendants to Dr. Kennedy.

1843, October 28th. Subpoena on part of defendants to Dr. Campbell.

1843, October 30th and 31st. Subpoenas on part of plaintiff to Dr. A. H. Campbell, James Corbin, James Smith, James Snyder, and Daniel Brown.

1843, November 20th. Above subpoenas returned.

1843, November 22d, 23d, 24th, and 25th. Tried by jury, and, 25th, verdict for plaintiff for six thousand five hundred dollars ($6,500), with costs of suit.

1843, November 24th. Defendants' points filed.

1843, November 25th. Motion in arrest of judgment, and for a new trial.

1843, November 27th. Plaintiff's bill of costs filed.

1843, November 30th. Reasons in arrest of judgment, and for a new trial, filed.

1843, December 1st. Argument for a new trial commenced.

1843, December 7th. Argument of motion for new trial continued and concluded by Messrs. Mahon and Loomis, for defendants, and Mr. Biddle, contra, for plaintiff.

Same day. Affidavit of Jacob Murphy filed.

Same say. After argument, defendants' points overruled, and judgment on the verdict; stay of execution for thirty days.

Same day. Plaintiff's counsel desired the sanction of the court to the following amendment to the verdict, objected to by defendants' counsel. Objections filed by order of the court; after argument, objections overruled, and verdict amended as follows, viz.:—'And now, to wit, December 7th, 1843, inasmuch as the plaintiff,

on the trial of the cause, offered proof of but a single disaster, and its injurious consequences, as set forth in the second count of the declaration, the verdict is amended accordingly, and judgment entered for the plaintiff on the said second count, and for the defendants on the first count.'

1843, December 15th. Defendants enter into a bond, which is approved by Judge Irwin, in the sum of thirteen thousand dollars, and sue out their writ of error.

1843, December 15th. Citation issued.

1843, December 15th. Writ of error allowed and issued.

1843, December 16th. Citation returned; served by copy on R. Biddle, Esq., attorney of defendants.

Copy of Declaration.

In the Circuit Court of the United States for the Western District of Pennsylvania.

Lucius W. Stockton, a citizen of Pennsylvania, and Daniel Moore, also a citizen of Pennsylvania, were summoned to answer Harriet Bishop, a citizen of Ohio, in an action on the case. Whereupon the said Harriet Bishop, by McCandless & McClure, her attorneys, complains, for that whereas the said defendants, before and after the time of committing the grievance hereinafter mentioned, were owners and proprietors of a certain line of stagecoaches for the carriage and conveyance of passengers from Baltimore, in the State of Maryland, to Wheeling, in the State of Virginia, for hire and reward, to the said defendants in that behalf; and the said defendants being such owners and proprietors of the said line of coaches so as aforesaid, thereupon heretofore, to wit, at the special instance and request of the said defendants, became and was a passenger in the said line of coaches, to be safely and securely carried and conveyed thereby on a certain journey, to wit, from Baltimore aforesaid to Wheeling aforesaid, for a certain fare and reward to the said defendants in that behalf; and the said defendants then and there received the said plaintiff as such passenger as aforesaid; and thereupon it then and there became and was the duty of the said defendants to use due and proper care that the said plaintiff should be carefully and securely carried and conveyed by and upon the said line of coaches on the said journey; yet the said defendants, not regarding their duty in that behalf, did not use due and proper care that the said plaintiff should be safely and securely carried and conveyed by and upon the said stagecoach, on the said journey from Baltimore aforesaid to Wheeling aforesaid, to the damage of the plaintiff twenty thousand dollars.

And whereas also, heretofore, to wit, on the day and year aforesaid, at Baltimore aforesaid, the said plaintiff, at the said special instance and request of the said defendants, became and was a passenger

by a certain other coach, to be safely and securely carried and conveyed thereby on a certain journey, to wit, from Baltimore aforesaid to Wheeling aforesaid, for certain rewards to the said defendants in that behalf; and thereupon it then and there became and was the duty of the said defendants to use due and proper care that the said plaintiff should be safely and securely carried and conveyed, by the said line of coaches, on the said journey from Baltimore aforesaid to Wheeling aforesaid; yet the said defendants, not regarding their duty in this behalf, did not use due and proper care that the said plaintiff should be safely and securely carried and conveyed, by the last mentioned coach, on the said journey from Baltimore aforesaid to Wheeling aforesaid; but wholly neglected to do so, and by reason whereof one of the legs, one of the arms, two of the ribs, [and] the collar-bone of the said plaintiff then and there became and were fractured and broken, and the said plaintiff was then and there otherwise greatly bruised, wounded, and injured; and also by means of the premises the said plaintiff became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, hitherto; during all which time the said plaintiff suffered, and underwent, and endured great pain, and was hindred and prevented from transacting and attending her necessary and lawful affairs and business by her during all that time to be performed and transacted, and lost and was deprived of divers great gains, and advantages, and profits, which she might, and otherwise would, have derived and acquired from the same; and thereby also the said plaintiff was forced and obliged to pay, lay out, and expend divers other large sums of money, amounting, in the whole, to the sum of one thousand dollars, in and about the endeavouring to be cured of the last mentioned bruises, fractures, and injuries received as last aforesaid, to the damage of the said plaintiff twenty thousand dollars; and therefore she brings suit.

McANDLESS & McCLURE, Plaintiff's attorneys.

(Then followed a summons, and a commission to take testimony, under which several witnesses were examined, and the record proceeded.)

Copy of Plea.

BISHIP v. STOCKTON ET AL. Circuit Court of the United States for the Western District of Pennsylvania.

The defendants, by Cornelius Darragh, their attorney, come and defend the wrong, when, &c., and for plea say, that they are not guilty of the matters and things alleged against them in the plaintiff's declaration, and of this they put themselves upon the country.

May 10, 1843.

C. DARRAGH, for defendants.

Copy of Defendants' Points.

HARRIET BISHOP v. STOCKTON & MOORE.

The counsel of the defendants respectfully request the court to instruct the jury as follows:——

1st. That the proprietors of a stagecoach do not warrant the safety of their passengers, in the character of common carriers; and that they are not responsible for mere accidents to the persons of passengers, but only for the want of due care. (Given.)

2d. That they do not warrant the safety of passengers; their undertaking, as to them, goes no further than this; that as far as human wisdom and vigilance can go, they will provide for the safe conveyance of their passengers. (Given.)

3d. That if the jury believe that the accident in this case was caused by the intoxication of James Corbin the driver, but that he was not only not in the habit of drinking intoxicating liquors, but was intoxicated, on this occasion, for the first time in his life; that, in this event, the defendants will have exercised due care in the selection and employment of James Corbin as a driver, and will not be liable in this action. (Refused.)

4th. That if the jury believe that the accident was caused by the intoxication of James Corbin, yet if they also believe that a...