Rogers v. McCune

• Decision Date: 31 March 1854
• Parties: ROGERS, Respondent, v. MCCUNE, Appellant.
• Court: Missouri Supreme Court

19 Mo. 557

ROGERS, Respondent,

v.MCCUNE, Appellant.

Supreme Court of Missouri.

March Term, 1854.

1. What is a proper precautionary measure in itself, uninfluenced by rule, usage or custom, to avoid collisions of steamboats, is a question of law. Signals by bells are not, as a matter of law, without regard to usage or custom, a proper measure of precaution.

2. It is no error to refuse an instruction based upon a state of facts of which there is no evidence, or the prineiple of which is embodied in another instruction given.

3. The declarations of a master of a boat, after a collision, as to how it occurred, are not admissible against the owner.

4. The supreme court will not reverse a cause because a leading question was permitted to be asked a witness.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by Rogers, to recover damages for the sinking of the steamboat Archer, of which he was owner, by a collision with the steamboat Die Vernon, of which the defendant was part owner. The issue made by the pleadings was, whether the collision was occasioned by the negligence of the officers and crew of the Die Vernon or of the Archer.

The collision occurred about one o'clock in the morning of November 27, 1851, at a point in the Mississippi river, a few miles above the mouth of the Illinois, opposite the upper part of Enterprise Island, and just above the head of Roy's Island. Enterprise Island is on the Missouri side of the river, and its head is about 100 or 150 yards above the head of Roy's Island, which is on the Illinois side. The river between these two islands was all channel. Opposite to the head of Enterprise Island was a sand-bar, making out from the head of Roy's Island, and the Illinois shore, the western point of which was about sixty yards from the head of Enterprise Island. This was known in this case as the upper bar. The collision occurred between this bar and Enterprise Island. The Die Vernon, which was the descending boat, ran into the Archer, the ascending boat, striking her quartering, a little forward of the cylinder timbers, and cutting into her larboard side as far as the kelson. The Archer sank immediately, and about thirty-five of her passengers and crew were killed or drowned. The night was dark and hazy, and there was no moon. There was conflicting evidence as to the position of the Archer when she was struck. The plaintiff's witnesses located her near the shore or upper bar. The defendant's witness located her nearer to the centre of the channel. The pilot of the Die Vernon, who was on watch, testified that, as the Die was making the crossing above the sand-bar, he saw the lights on the Archer, and supposed that she was on the Missouri shore, near Enterprise Island. When he reached the head of Enterprise Island and straightened down, he still supposed that the Archer was on the Missouri shore, and he tapped the bell of the Die Vernon twice, to signify that she would go down the Illinois side. As he bore away in this direction, he heard cries on the Archer, and then it seemed to him as if the Archer had left the Missouri shore, and was running across the bows of the Die Vernon. He rung the stopping bell of the Die Vernon, and thought the engines were stopped two hundred feet from the Archer, but the Die soon struck the Archer and sunk her. He stated that he worked the engines of the Die Vernon slow from the head of Enterprise Island; that if he had supposed the Archer was on the Illinois shore, he would have tapped the bell once, and have run down the Missouri shore, but as it was, he would have run the way he did, whether he had rung the bell or not. The pilot of the Archer testified that the did not hear the signal bells of the Die Vernon. He stated that the Archer was running along the shore of Roy's Island, when the lights of the Die Vernon were seen about two miles ahead; that the Archer proceeded along the shore of Roy's Island and the bar, until the Die Vernon got down to the crossing above the bar; that, as the Die was making the crossing, he attempted to give the signal of four taps of the bell, when he found the bell would not ring; he then turned the Archer more directly towards the bar, and called down through the speaking trumpet for the mate to clear the bell rope. The mate came and attempted to clear the bell rope, but failed. In the meantime, the Die Vernon came to the head of Enterprise Island, and straightening down, appeared to run a short distance in the usual course, but gradually swung around, until at the distance of two hundred yards, she pointed directly towards the Archer. The mate and pilot of the Archer became alarmed, and began to halloo as loud as they could. The Die, however, kept on until she struck the Archer. The headway of the Archer by this time was nearly gone, and she was very near to the bar. The Archer was much the smaller boat, having an average speed of about four miles an hour up stream The Die Vernon had an average speed of from sixteen to twenty miles an hour down stream, when under headway. The Archer was nearly a total loss. The Die Vernon was not injured.

The defendant read in evidence the following rules, established by the Upper Mississippi River Pilots' Association, in 1847, and afterwards, as was testified, generally, though not always, observed:

1. The boat descending shall keep the channel, in all cases.

2. The ascending boat shall keep the shore or upper bar, as the case may be.

3. In case of two boats meeting at the point of a bar, the ascending boat shall stop her engine until the other boat has passed.

4. In case of two boats meeting in a chute, the boat ascending shall stop her engine and drop in shore; the boat descending shall work slow until she has passed the other boat.

5. No boat descending in the night, in high water, shall run the chutes, under any pretence whatever.

6. In foggy or dark nights, the boat ascending (in case of meeting another) shall stop her engines and tap her bell four times; the boat descending shall then tap her bell once, if she wishes to run to the starboard, or twice, if she goes to the larboard, to signify to the ascending boat which side she wants to run.

7. Boats on the rapids to be governed by the same rules, excepting in the chains; there, if a boat be discovered descending, the ascending boat shall stop below the chain until the other has passed, provided it is not in such a place that both can pass in safety.

8. No boat shall be permitted to lock another.

9. In case of two boats ascending or descending, the one ahead shall give the other half the channel, so that the fastest boat can pass.

10. In Fever River, Grand River and Platte River, each boat to keep to the right of the other.

11. All pilots are obliged to give the signals of the bell in the day as well as in the night time, as in article 6.

Witnesses for the plaintiff testified that, by the customs of the river above St. Louis, for a quarter of a century, the ascending boat was bound to keep the shore or upper bar, as the case might be, and the descending boat was bound to keep the channel in all cases. They stated that the custom of signalling introduced in 1847, did not alter the old custom, but that the boats were bound to give the signals in accordance with the old custom; that the object of the signals was, to make the pilots feel certain that they understood each other, and that the descending boat never had the right, by signal, to take away the upper bar from the ascending boat. On the other hand, there was evidence that the descending vessel had the right, by signal, in all cases, to take choice of sides. There was evidence tending to show that, if the ascending boat did not give a signal, the descending boat could, by usage, give the first signal, and also evidence that, if no signal was given by the ascending boat, the descending boat had no right to signal at all. There was evidence that the descending boat had no right to run according to signal, unless it was answered by the ascending boat. On the other hand, witnesses for the defendants testified that it was the duty of the descending boat to run according to her signal, until danger was seen. One witness stated that it was the duty of the ascending boat to give the descending boat the upper bar, if she signals for it, unless the ascending boat signals otherwise. There was evidence that, independent of signals, the Archer was in the proper place for an ascending boat, and the Die Vernon not in the proper place for a descending boat, and vice versa.

Thomas Taylor, a witness, whose deposition was taken by the respondent, was asked the following question:

“Is there any custom of the river authorizing the descending vessel, in the night time, to leave the main channel, for the purpose of taking the upper bar away from the ascending boat, as far as you know?”

This question was objected to as leading when the deposition was taken, but the answer of the witness, to the effect that he knew of no such custom, was permitted to be read at the trial, the defendant excepting.

Florent Meline, a witness whose deposition was taken by the respondent, speaking of the value of the Archer, said: “For the purposes of a ferry boat, I consider her worth $10,000, judging from the price asked for other boats not so good.” This was objected to by the defendant, but admitted. The statement of the same witness as to the cost of repairs on the Archer, before the collision, was permitted to go the jury, the defendant excepting. His only knowledge of the cost of the repairs was derived from “bills that passed through his hands.” One of the items of the repairs was $3,200, of which the witness said: “the bill is mislaid; I set it down from recollection; I cannot swear it is correct.”

The defendant offered to prove that, immediately after the collision, and as soon as Captain Rogers, the master of the Archer, had got aboard the Die Vernon, he stated in the social hall of the Die...