The Blue Wing v. Buckner

• Citation: 51 Ky. 246
• Parties: Steamboat Blue Wing v. Buckner.
• Decision Date: 29 September 1851
• Court: Kentucky Court of Appeals

51 Ky. 246

Steamboat Blue Wing v. Buckner.

Court of Appeals of Kentucky.

September 29, 1851

Steamboats. Diligence. Practice.

APPEAL FROM THE LOUISVILLE CHANCERY COURT.

Loughborough and Ballard, for appellants

Thomasson, for appellee.

OPINION

HISE JUDGE.

Case stated and decree of the chancellor.

ROBERT BUCKNER instituted this suit in the Louisville Chancery Court against the Steamboat Blue Wing, claiming damages for injury done to his hay boat in the Kentucky River, by the former having run into and crushed her through the mismanagement and negligence of the officers in command of the Blue Wing.

The master of the Blue Wing does not deny the charge that his boat came in contact with the complainant's hay boat, and that it was somewhat injured and damaged in consequence thereof. But he denies that it was caused by any fault or negligence of the officers and crew of the Blue Wing, and rests his defense upon the ground that the collision occurred in the night, which was very dark, when it was raining, and the wind blowing fresh, that there was no light or watch on the hay boat to give warning as to her position, and that they accidentally run into her, not being able to see her in the darkness of the night, in sufficient time to avoid the collision and consequent injury done-- that in the existing stage of the river (which was rising), the current set in toward the place where the hay boat was cabled to the shore which carried his vessel in that direction as she ascended the Kentucky River, after passing through the lock.

By direction of the Court a jury was called, empanneled, and sworn, who after having heard the evidence submitted, and the charge delivered to them by the chancellor returned a verdict for $135 in damages, in favor of the complainant.

The defendant's attorney moved the Court for a new trial, upon the grounds: 1. That the Court erred in refusing to give the instructions asked by defendant. 2. That the Court erroneously instructed the jury. 3. That the law was not properly expounded to the jury. 4. That the verdict of the jury was against the law and evidence.

The substance of the proof.

The motion for a new trial was overruled by the Court, and a decree rendered in favor of the complainant for the sum in damages assessed by the jury, and the costs of suit. The defendants excepted to the decision of the chancellor. The evidence was certified and spread upon the record, and they have appealed to this Court.

The proof in the cause clearly establishes the following state of fact: The hay boat was fastened close to the shore of the Kentucky river, with lines attached to both the bow and stern, at Dean's landing, which is on the same side of the river with lock No. 1, and is a usual landing place for flatboats and other river craft, at which they frequently stop and lay up. The landing where the boat was cabled is between three and four hundred yards above the lock No. 1, and more than one hundred yards above the ground adjacent to the lock which belongs to the State. While the hay boat thus lay next the shore, there being no person and no light on board, the steamer Blue Wing, in the night, which was quite dark, ascending the river, passed through the lock No. 1, and the cribbing above, the pilot then stopped the larboard, and continued working the starboard wheel, and caused the vessel to run along and next to the shore, until she struck the hay boat, and produced the injury and damage for which complainant has brought this suit. The river bends to the right above the lock, and it is not usual for steamboats, after passing through the lock, to keep on next to the shore, as was done in this instance, but to pass out into the middle of the river, in the direction of the point on the shore opposite to that where the hay boat was cabled. There was another flatboat fastened on the same shore, and lying between the hay boat and the lock, which the Blue Wing passed and left uninjured, and yet struck the hay boat lying above. The proof does not at all authorize the conclusion that the collision was unavoidably produced by stress of weather or by force of wind or current. But the witnesses for defendants admit that it might have been avoided if the hay boat had been discovered in time, although they express the opinion that in the then existing stage of the river, it would have endangered the boat and the lives of those on board, to have turned the bow of the steamer toward the middle of the river, immediately after passing through the lock and the cribbing above, as the force of the current might have carried her down the river and over the dam. But it is obvious, from the proof, that, as they had abundant room to pass the lower flatboat, without risk or danger, they could have still more easily have passed the hay boat, which was cabled above, at the usual landing place for flatboats.

Instructions moved in the...