Philadelphia, W. & B.R. Co. v. Kerr

• Decision Date: 19 July 1866
• Parties: THE PHILADELPHIA, WILMINGTON & BALTIMORE RAIL ROAD COMPANY v. ROBERT KERR & OTHERS.
• Court: Maryland Court of Appeals

25 Md. 521

THE PHILADELPHIA, WILMINGTON & BALTIMORE RAIL ROAD COMPANY v. ROBERT KERR & OTHERS.

Court of Appeals of Maryland

July 19, 1866

The expression "ordinary care and diligence" is comparative, and always bears a direct relation to the particular circumstances of each case, the increasing probabilities of danger requiring a corresponding increase of care and vigilance to avoid it.

APPEAL from the Superior Court of Baltimore city.

This was an action by the appellees against the appellant to recover damages for loss and injury sustained by them from a collision caused by the over-running and sinking of a canal boat loaded with lime owned by them, by the steam ferry boat "Maryland," plying between Havre-de-Grace and Perryville, on the Susquehanna river. The plaintiffs, in their declaration, averring due care on their part, charge the collision to negligence and carelessness on the part of the defendant. The defendant, in its pleas, denies the wrong and injury imputed to it, and in turn charges a want of care and diligence upon the plaintiffs, and issue was joined on said pleas.

Exception.--At the trial of the cause the captain of the canal boat, (who was one of the plaintiffs,) testified that he left Morgan's wharf, situated on the west side of the Susquehanna River, about five hundred yards north of the wharf of the steamer at Havre-de-Grace, on the morning of the 24th of May, 1862, in clear daylight, bound south; that in about half an hour after the canal boat had got under way the steamer Maryland, in her course from Perryville to Havre-de-Grace, and when about two hundred and fifty or three hundred yards east of its wharf at Havre-de-Grace, struck the side of the canal boat and stove it in; that he was standing at the helm, in charge of the rudder, that he did not see the Maryland until she was within one hundred yards of the canal boat, that he could not have done anything to get out of the way, that the breeze was so light that the canal boat was moving down the river at only about two miles an hour, and that he could not have controlled her by the rudder, and was obliged to let her drift; that he had no idea that the steamer would strike the boat until she did strike, as he considered that it was the business of the steamer to keep clear of the sailing vessel. The witness also stated that he had been in the habit, for ten years, of navigating the Susquehanna near Havre-de-Grace, and that he knew that the steamer was in the habit of crossing the river, with the railroad cars, many times every day, and that he knew her course. He also testified, that from Morgan's wharf, and from the helm of the canal boat, there was a clear unobstructed view in every direction; that he did not look out for the Maryland; that he never looks out for steamers that there was no special lookout on the canal boat; that there were two hands on deck, but no notice was given him of the approach of the steamer; that he had two anchors on board, but that he did not throw out either. He further stated, that if an anchor had been thrown out it would have stopped the boat in twenty or thirty feet.

There was proof that the steamer was in her usual track; that her engine was reversed before the collision, although not in time to prevent it; but her motion was then slow. The time occupied by the steamer in passing from wharf to wharf, when the river is unobstructed, was proved to be from six to seven minutes.

It was proved that the steamer crosses the river ordinarily about twenty-four times in a day, carrying trains of passengers and freight cars. Her length is two hundred and thirty-six feet breadth thirty-six feet, and her engines eight hundred horse power. She has two pilot houses; but the view up the river, from the forward pilot house, when crossing the river from Perryville to Havre-de-Grace, is shut off by the train of cars on the starboard side of the steamer's upper deck. As soon as the canal boat was seen, the captain of the steamer ordered the engines to be reversed. The captain testified that there was a breeze from the north, quite sufficient to have enabled the canal boat to pass to the stern of the steamer. There was no special lookout on the steamboat, and it was proved, that if a lookout had been stationed at the steamer's bow, he could have seen whatever was in the river, up to Morgan's wharf.

Mr. Moore, a mariner, said, that the canal boat could easily have gone round the stern of the steamer, and that he always avoided the steamer, and that, in his opinion, a man of ordinary prudence, when in command of a sailing vessel there, would keep a constant watch for the steamer, and that in this case, if there was not sufficient breeze to propel the canal boat, the captain should have dropped his anchor, which would have prevented the collision.

The plaintiffs and defendant each offered three prayers, all of which were rejected; and the Court gave an instruction, laying down to the jury two rules for their guidance:

1. That it was the duty of the defendant to exercise the utmost care and diligence, which it was in its power to employ, considering the nature of the business in which it was engaged.

2. That if the injury to the canal boat could have been prevented by the exercise of such care and diligence on the part of the defendant, in the use and management of the steamboat, then the plaintiffs are entitled to recover, unless the jury shall find that the accident could have been avoided by the exercise of ordinary care and diligence on the part of those in charge of the canal boat.

To the instructions given by the Court, the defendant excepted, and the verdict and judgment being for the plaintiffs, appealed to this Court.

The cause was argued before BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, J.

Wm. Schley and Thos. Donaldson, for the appellant:

1. In an action on the case to recover damages at law, for injuries caused by a collision, the plaintiff cannot recover, if his own negligence contributed, in any degree, to produce the collision. He must establish two propositions of fact, firstly, that there was want of due care on the part of the defendant; and no want of care on the part of the plaintiff. The onus as to both facts, is on the plaintiff. Vanderplanck vs. Miller, 1 M. & M., 169, 22 Eng. C. L. Rep., 280. Pluckwell vs. Wilson, 5 Carr & Payne, 375, 24 Eng. C. L. Rep., 368. Turley vs. Thomas, 8 Carr & Payne, 103, 34 Eng. C. L. Rep., 312. Woolf vs. Beard, 8 Carr & Payne, 373, 34 Eng. C. L. Rep., 435. Thorogood vs. Bryan, and Callin vs. Hills, 8 Man. Gr. & Scott, 114, 65 Eng. C. L. Rep., 114. Hawkins vs. Cooper, 8 Carr & Payne, 473, 34 Eng. C. L. Rep., 485. Sells vs. Brown, 9 Carr & Payne, 601, 38 Eng. C. L. Rep., 245. Smith vs. Smith, 2 Pick., 621. Irwin vs. Sprigg, 6 Gill, 200. Lane vs. Crombie, 12 Pick., 177. Owings vs. Jones, 9 Md. Rep., 108. Harlow vs. Hamiston, 6 Cow., 191. 3 Am. Law Reg., 565, (N. S.)

2. In the navigation of the Susquehanna river at Havre-de-Grace, by a canal boat, passing over the known and accustomed track of the steamer Maryland, the captain of the canal boat (having knowledge of the fact that said steamer was accustomed to pass from wharf to wharf, many times during every day, and that she was a large and powerful steamer, and that, from the absence of a sufficient breeze, he had no control of the canal boat, but was obliged to let her drift) was bound to exercise more than ordinary care and diligence. The defendant's prayers, it is true, presented the hypothesis of want of ordinary care on the part of the plaintiffs, in any material respect; but it was in connection with the proposition that the defendant was only bound to ordinary care. The instruction makes a wide distinction. Whilst holding the defendant to the utmost care possible, it limits the duty of the plaintiffs to mere ordinary care.

The counsel for the appellant maintain, that under the circumstances, the plaintiffs were under the same obligation of care and diligence as was the defendant. The ordinary rules of navigation, on the high seas, have no controlling application to this steamboat engaged in the special service of passing on a prescribed route, from wharf to wharf. Steves vs. The Oswego & S. R. R. Co., 18 N. Y., 422. Wilds vs. Hudson R. R. Co., 2 Amer. Law Reg., N. S., 422. Wright vs. Malden, R. R. Co., 4 Allen's Rep., 283. Balto. & Susq. R. R. Co. vs. Woodruff, 4 Md. Rep., 242.

But not only did the instruction thus discriminate in the required degree of care, but practically shifted the onus from the plaintiffs upon the defendant. The plaintiffs were not required to prove affirmatively that there was no want of care on the part of the canal boat; but the instruction, as given, cast upon the defendant the burden of establishing that there was want of ordinary care on the part of the plaintiffs. Harlow vs. Hamiston, 6 Cow., 191. Lane vs. Crombie, 12 Pick., 177, cited and adopted in Irwin vs. Sprigg, 6 Gill, 206.35 Md. Rep., 422. 23 Conn. Rep., 439.

4. The rules properly applicable in cases of bailment, to carriers of passengers, carriers of freight, &c., and the rules of the Admiralty Court properly applicable in cases of collision on the high seas, ought not to be applicable in the present case. This is an action at law, the steamer a ferry boat travelling on a prescribed route, from wharf to wharf, not...