West Memphis Packet Co. v. White

• Decision Date: 22 May 1897
• Citation: 41 S.W. 583,99 Tenn. 256
• Parties: WEST MEMPHIS PACKET CO. et al. v. WHITE.
• Court: Tennessee Supreme Court

41 S.W. 583

99 Tenn. 256

WEST MEMPHIS PACKET CO. et al. v. WHITE.

Supreme Court of Tennessee.

May 22, 1897

Error to circuit court, Shelby county; L. H. Estes, Judge.

This is a suit for damages, brought by B. White against the West Memphis Packet Company and the Memphis & Arkansas Ferry Company. Judgment for plaintiff. Defendants bring error. Affirmed.

Randolph & Sons and Metcalf & Walker, for plaintiffs in error.

Turley & Wright, for defendant in error.

BEARD J.

This is a suit for damages, brought by the defendant in error against the West Memphis Packet Company and the Memphis & Arkansas Ferry Company; the gravamen of the complaint being that while a passenger on the steamboat Golden Gate, operated, as is alleged, by and in the joint interest of plaintiffs in error, owing to the failure of their servants to preserve order and decorum on this boat, the defendant in error was severely injured by a shot fired from a gun negligently handled by a fellow passenger. Upon pleas which made issues upon all the material averments in this declaration a trial was had, which resulted in a verdict of $3,500 against both plaintiffs in error, from the judgment on which they have prosecuted their appeal to this court.

As to the facts, it is only necessary to say that the evidence tended to show that plaintiffs in error were rival corporations, operating different streams, doing a ferry business from Memphis to different points on the west shore of the Mississippi river, and something of a coasting trade as well, and at the same time giving occasional excursions for revenue, to which the public were invited; that this rivalry was attended with much loss, and at last resulted in litigation; that, pending this litigation, they came together, and entered into an agreement by which the West Memphis Packet Company was to retire and tie up its steamer the C. B. Bryan until necessity should call it out, and that the Memphis & Arkansas Ferry Company should continue its steamer the Golden Gate in operation, and that it was to do the work therefore done by the two steamers, in the interest of both companies, they sharing the losses and profits; that this agreement provided for a board of arbitrators, who should choose the officers of the combination and the employés to man this boat; that this board was never constituted, but that all officers of the Memphis & Arkansas Ferry Company, as well as crew of the Golden Gate, were retained by the combination, and C. B. Bryan, of the West Memphis Packet Company, was made treasurer of this combination. The evidence further discloses that one of the general officers of the company owning the Golden Gate, and engaged in operating this steamer, was one James Couch; that he, through the newspapers of Memphis, advertised that an excursion would be given by that boat to a point some 20 miles below Memphis; that this advertisement had general publicity, and was known to Mr. Bryan of the West Memphis Packet Company, and treasurer of the combination, several days before it occurred, and he made no objection to it; that while both boats before the combination made similar excursions, in the interest of the rival companies, such as occurred afterwards were made by the Golden Gate on joint account; and that the proceeds of this excursion were paid by Couch into the treasury of the Memphis & Arkansas Ferry Company. The evidence also discloses that the defendant in error, with his children, in company with 75 or 100 other persons, of all ages and both sexes, embarked as passengers on this excursion, and that among these passengers were a number who were armed with guns and pistols, who, occupying positions on the different decks of the boat, soon after it left its moorings and got under way, began an indiscriminate firing at objects in the water, to the great alarm of many persons on board. At this time the defendant in error was seated on the middle deck, where he was directed by Couch to go, and where many of the other passengers were. He was seated, with one of his children on his knee, and the others near by, while on the deck above were a party of three or four persons who were practicing with their guns. One of these parties, a passenger named Phillipi, while manipulating a repeating gun, for the purpose of exhibiting its construction and movements to those persons immediately around him, placed a loaded shell in one of the chambers of the cylinder, which, while the muzzle of the gun was pointed down, in some unknown and accidental way exploded, the shot therefrom passing through the thin covering or roof of the hurricane deck into the body of White and the child in his arms, inflicting the injuries for which he here sues, and a mortal wound on the child. Among the persons standing near Phillipi, watching and interested in the experiment, was Couch, the party who advertised the excursion. The evidence shows that not only he had not endeavored to stop the firing but he had encouraged it by actively participating in it. The contention of the plaintiffs in error was that this excursion was an individual enterprise of Couch's, in which their combination was not interested, and also that Couch was not the master, nor in charge of the boat, on this excursion; but there was evidence tending to show otherwise, and upon which with various issues of fact, the jury could-and, it must be assumed in this court, did-rest their verdict. This is equally true with regard to the other issues of fact passed upon in the court below.

After the evidence of the plaintiff below was in, the defendants below moved the court to exclude it from the jury, upon the ground that it would not support a verdict in his favor. This motion was overruled, and the action of the court in this regard is assigned for error; and an earnest argument is submitted, insisting upon this as a proper practice in this state. Whether the practice is a wise one, and as such should be adopted, it is not necessary for us to determine. It is sufficient to say that it has never prevailed in Tennessee, and there was certainly nothing in the testimony, as we read it in this record, which would have warranted its introduction and application in this case.

A sweeping objection is made to the charge of the trial judge,-that it abounds in generalities without application to the facts of the case, and that its effect was to confuse or mislead the jury, rather than guide them to an intelligent verdict. We have carefully examined this charge, in view of the interest involved and the hurt that could easily in such a case be unnecessarily inflicted by the trial judge on plaintiffs in error, and, while we find in it more or less of generalization and abstraction, which it would have been wiser to avoid, yet we do not regard it as amenable to this criticism. While general or abstract propositions are stated, it is with a purpose, as we understand it, to illustrate and emphasize the relations of a carrier to his passengers, and their respective rights and responsibilities, and we are not able to discover, in doing this, that the jury were led to the consideration of false, or left to grope in the dark as to the true, issues. Whatever generalizations are indulged in, they led up to the statement of the law which determined the rights and responsibilities of the parties upon the issues of fact presented in the record, and in language within the easy apprehension of the jury.

Among the instructions given, and which it is now insisted were either misleading generalities or else positively erroneous when applied to the facts of this case, is the following "The lawfulness of an act from which injury results is no excuse for the negligence, unskillfulness, or incaution of the party. Every one, in the exercise of a lawful act, is bound to use such reasonable and vigilant precaution as that no injury may be done to others. Nor is it material in this action whether the injury was willful or not, but the gist of the action is whether or not the defendant used proper care in allowing the passengers using guns to use them in the manner the evidence shows they did use them on this trip." It is conceded that, if this was an action against the party who placed the loaded shell in the gun, and pointed it downward towards defendant in error, when it was discharged, to his hurt, the fact that the explosion was unexpected and accidental would not discharge such party from liability; for the rule admittedly is well settled that, "if the injury is not the effect of an unavoidable accident, a person by whom it is inflicted is liable to respond in damages to the sufferer." Tally v. Ayres, 3 Sneed, 677. While this is conceded to be a sound principle, yet it is insisted it has no application to this case, and that the effect of the court's instruction is to make the...