Moore v. Moss

• Citation: 4 Peck 106,14 Ill. 106,1852 WL 4409
• Parties: JAMES C. MOORE, Plaintiff in Error,v.WILLIAM S. MOSS, Defendant in Error.
• Decision Date: 31 December 1852
• Court: Supreme Court of Illinois

14 Ill. 106
1852 WL 4409 (Ill.)
4 Peck (IL) 106

JAMES C. MOORE, Plaintiff in Error,
v.
WILLIAM S. MOSS, Defendant in Error.

Supreme Court of Illinois.

December Term, 1852.

THE declaration alleged that plaintiff owned a steamboat, running on the Illinois river; defendant also. Defendant run his boat carelessly and negligently against plaintiff's and broke and injured it. Plaintiff greatly damaged thereby and obliged to pay out money to repair it, $1,500; lost use of it for a long time; also the profits of the use of it, &c.

2d count. Same as first, except that the names of the boats are given-- plaintiff's, Avalanche; defendant's, Alvarado.

[14 Ill. 107]

Plea, not guilty.

Instructions given at the instance of plaintiff:--

1st. That boats going down must in the night keep the main channel, and not take any of the small chutes, these small chutes being the right of the ascending boat alone in the night. That the object of the latter clause of the 2d section of chap. 102, Revised Statutes, was intended to avoid collision in the night time in the small chutes.

2d. That, independent of the laws, boatmen have a right, as between themselves, to establish signs or signals, indicating in what manner they desire to pass each other on the river. That if such signs or signals are given by one boat, and answered by the other, and understood by both, it is a contract that the boats are to pass each other according to such signals, and that the presumption of law is, that when signals are given and answered according to the custom of the river, that they are understood by both the parties who make them.

3d. If the jury believe that in this case signals were given and returned by both boats, indicating that each boat should pass to the larboard or left, and that the plaintiff used all reasonable diligence to do so, and all reasonable care and skill in so doing, to avoid a collision, and that the collision occurred through the carelessness, negligence, or inattention of the defendant or his officers, then the plaintiff is entitled to recover in this suit, and that the measure of damages is the damages for the reasonable detention at the place of collision, the cost of the repairs of the boat occasioned by the collision, the necessary pay and expenses of officers and hands necessarily occupied about the boat during a reasonable time for making the repairs made necessary by said collision.

4th. That if the jury believe from the evidence that the signal to pass to the left was given by both boats, as contemplated by the third instruction, and that afterwards defendant's boat kept directly on its course, not leaving sufficient room for plaintiff's boat to pass to the left, or that defendant's boat, after the signals given as aforesaid, attempted to pass to the right, this, unexplained, would be evidence of gross negligence and carelessness on the part of the defendant or his officers.

Instructions of defendant modified.

5th. The proper course or place for the Alvarado in the night time, was to run by the bank of the river, and leave the middle of the stream or channel of the river for the passage of the boats going down the...