Porter v. Steamboat New England No. 2

• Decision Date: 31 October 1852
• Citation: 17 Mo. 290
• Parties: PORTER, Respondent, v. STEAMBOAT NEW ENGLAND No. 2, Appellant.
• Court: Missouri Supreme Court

17 Mo. 290

PORTER, Respondent,

v.STEAMBOAT NEW ENGLAND No. 2, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. If a boat expressly contracts to land a passenger at a particular point, with a knowledge of the danger of effecting a landing at that point, such danger will not excuse her for a failure to comply with the contract.

Appeal from St. Louis Law Commissioner's Court.

B. A. Hill, for appellant. 1. A passenger who has shipped for a certain landing is bound, in stress of weather, the night being dark and stormy, and the landing dangerous, on such a night, to the safety of the vessel and the lives of the passengers and crew, to land at the landing nearest the one of his destination, upon being notified that it is unsafe and dangerous to land him at the place for which he is bound; and if such passenger refuses to land at the next nearest landing, in such case, he is not entitled to recover more damages for the failure of the vessel to perform her contract, than the damages he would have sustained, if he had exercised due diligence in getting to his port of destination, from the next nearest landing above or below it. 2. The master of a vessel is not bound, in such case, to carry a passenger beyond the nearest landing above the one for which he is bound. 3. The first instruction given for plaintiff is erroneous, for the reason that it authorizes a recovery of plaintiff, without regard to the question whether it was possible for the defendant to land plaintiff's son at the place specified, with safety to the vessel, her passengers and crew. The third is objectionable for the same reason. 4. The second instruction contains erroneous propositions of law in regard to damages. The question of diligence is entirely left out of the question. 5. The instructions asked by defendant were improperly refused.

H. N. Hart, for respondent. 1. The steamboat New England was bound by her contract to land the son of the plaintiff at the Two Branches, either by landing herself, or by sending him ashore in the yawl. 2. When the contract was made and the money received, it was near night, very rainy, dark and gloomy, and it is no excuse, a few hours after, for the boat to say they could not land, because the weather had not cleared up since they made the contract. 3. As to the measure of damages, the court below properly instructed the jury. 4. All the instructions asked by defendant only went to the measure of damages, and he did not make the fact of excessive damages a ground for new trial.

SCOTT, Judge, delivered the opinion of the court.

This was a suit by the plaintiff, Porter, against the steamboat New England, for a breach of a contract for the transportation of the plaintiff's son from St. Louis to a landing on the Mississippi, in the state of Illinois, called the Two Branches. The suit was begun in a justice's court and appealed to the law commissioner, where, after a judgment for the plaintiff for $21.50, there was an appeal to this court.

It appears that the plaintiff contracted with the officer of the defendant to transport his son to the Two Branches. The plaintiff himself was going on the same boat, with others, to a place ten miles above the Two Branches, for which his fare was $1.50. When the boy went on board, the officer was informed that he would be landed at the Two Branches. He said that an extra charge of fifty cents would be made for that. This was paid. It was near night when the party went aboard, and it was raining. The night being dark, at a landing five miles below the Two Branches, the boy was requested to go ashore, as others landed there. This he declined doing, saying that he did not know the road from that place to the Two Branches. The boy had no money, though this was not mentioned to the captain. When the boat approached the Two Branches, the boy went to the pilot and asked to be put ashore there; the pilot said he had no such orders. A search was then made for the captain, but he could not be found. The plaintiff landed at his place of destination, ten miles above the Two Branches, but directed his son to remain on board, which he did, until the boat reached Lagrange, one hundred and fifty or sixty miles above St. Louis, when the clerk was ordered to collect fare...