Mooney v. Carter

• Decision Date: 12 March 1907
• Docket Number: 1,528.
• Citation: 152 F. 147
• Parties: MOONEY v. CARTER.
• Court: U.S. Court of Appeals — Fifth Circuit

152 F. 147

MOONEY v. CARTER.

No. 1,528.

United States Court of Appeals, Fifth Circuit.

March 12, 1907

On Rehearing April 17, 1907.

This is an action to recover damages for the death of one Charles J Smith, under section 27 of the Code of Alabama of 1896, which provides an action for wrongful act, omission, or negligence causing death.

The plaintiff below presented his cause of action in five several counts, each setting forth a different theory.

Each count states that on the night of June 18, 1904, Charles J Smith, the intestate of defendant in error, and one Wissinger, were sitting in a small skiff at anchor in the Tennessee river, opposite the city of Decatur, Ala., and that said Smith and Wissinger were engaged in manipulating a trot line, and while so situated and engaged they were approached by a steamboat of the said James E. Mooney, and that said steamer was pushing a barge; that said steamer was under the control of one William Sellars as master thereof; that said steamer ran straight toward said skiff, and, notwithstanding said Charles J. Smith and his companion displayed signals of their whereabouts and danger by swinging a lighted lantern and giving loud cries of distress, said steamer ran straight at the skiff without giving any answer or response; and that said Charles J. Smith and his companion, being unable to change the location of their skiff or to lift the anchor were forced to jump into the water, and that said Smith was drowned. This statement of alleged facts is common to all the counts of the complaint. Each count goes further and alleges different causes for the injury. The first count charges that the death of Smith resulted from the negligence of Sellars, as master of the steamer, in failing to have a proper person stationed as a lookout in a suitable position on either the boat or barge. The second count was abandoned during the progress of the trial. The third count charges the negligence of Sellars after he discovered the peril of said Smith, in that he saw the signals of distress displayed by said Smith and his companion, but negligently and wrongfully persisted in holding the steamer to the course until it struck the skiff out of which said Smith and his companion had just sprung. In the fourth count it is charged that the death of Smith was caused by the wantonness and willfullness of said Sellars as master, in that he saw the signals of distress displayed from the skiff, and knew that human beings were in the skiff, and could have changed his course, and yet he willfully and wantonly kept the steamer in a straight course on to the skiff, necessitating the jumping therefrom of said Smith. The last count charges the wrong and negligence of the lookout on said steamer who saw the signals in time to have had the steamer stopped had he heeded said signals, yet he ignored said signals, and allowed the steamer to proceed until too late to prevent a collision.

The defendant below pleaded the general issue to all the counts-- the contributory negligence of Smith, in that after seeing the approaching steamer he took no steps to lift or loosen the anchor of his skiff until it was too late, averring that he could have done so and have gotten out of the path of the steamer if he had tried when he first saw her approach; also the contributory negligence of Smith in being seated in a small skiff or rowboat in the Tennessee river on a dark night, without having a white light stationed two feet above the stem of the boat in which he was sitting, in violation of the rule of the supervising inspector of steamboats, approved February 8, 1899, which requires...