Wright v. Brown

• Decision Date: 25 May 1853
• Citation: 4 Ind. 95
• Parties: Wright and Others v. Brown
• Court: Indiana Supreme Court

4 Ind. 95

Wright and Others v. Brown

Supreme Court of Indiana

May 25, 1853

ERROR to the Jefferson Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

J. G Marshall and J. Sullivan, for the plaintiffs.

W. M Dunn and A. W. Hendricks, for the defendant.

OPINION

Perkins J.

Brown, the owner of a flat-boat, brought an action against Wright and others, the owners, &c., of the steam-boat Wisconsin, alleging that while his, said Brown's, flat-boat was moored at the wharf in the city of Madison, on the Ohio river, laden with a cargo of, &c., of the value, &c., the defendants carelessly ran said steam-boat past said flat-boat, under a much greater head of steam than usual, and out of the ordinary channel, thereby producing waves of such violence, and so near to said flat-boat, that it was forced from its moorings, thrown upon a post on the shore, broken, sunk, &c., to the damage, &c.

Plea, the general issue. Jury trial. Verdict and judgment for the plaintiff for 240 dollars, and costs.

The evidence upon the record shows that Brown had a flat-boat at the Madison wharf, laden with hollow stoneware; that said boat was moored with "one anchoring line, having an anchor attached, quartering up and out into the river from the bow, a head-line almost straight up the river, and a breast-line to the shore," and was in charge of one Montgomery; that said boat had been lying at the wharf for some days; that on the 17th of December, and while said flat-boat was so lying at the Madison wharf, the steam-boat Wisconsin, a new boat just finished at Madison, and lying at the wharf about one hundred yards below the flat-boat, left said wharf to make her first trip, backed down some one hundred or two hundred yards, and then came up under a full head of steam, out of the customary channel for boats, and near the Indiana shore, in order, as the evidence is, "to show off," whereby the waves were produced which occasioned the destruction of the flat-boat and cargo in question. It further appears that everything was done that could be done, after the injury occurred, to save the flat-boat and cargo.

The circuit judge, in his instructions to the jury, said, "I hold it to be the duty of the officers of steam-boats when arriving at, departing from, or passing by, a landing at which flat-boats are moored, to run and manage their boats with a due regard to the safety of the flat-boats. They ought, at such times, to run their boats with less velocity than usual, and carefully avoid approaching or passing so near to the flat-boats as to endanger their safety. On the other hand, flat-boats ought not to be moored so near to the usual place of steam-boat landing as to render it inconvenient for steam-boats to get in or out without danger to the flat-boats.

"If you are satisfied from the evidence that the officers of the Wisconsin were guilty of gross carelessness in running their boat with greater velocity and nearer the shore than was proper under the circumstances, and so caused the plaintiff's boat to sink; and are also satisfied that if they had run their boat with reasonable velocity, and at a proper distance from the shore, and with reasonable care, the plaintiff's boat would not have been injured; you ought to find for the plaintiff, whether his boat was fastened to the shore and managed with ordinary care and skill or not, for in such a state of circumstances the loss was occasioned by the improper manner of running the Wisconsin, and would not have occurred but for that, and is, therefore, wholly attributable to that cause."

To this instruction the defendant excepted.

We shall consider this case as one of collision between the vessels; for it must be the same thing in principle, whether the steam-boat ran upon the flat-boat, or forced some other object upon it, to produce the injury; and we must consider the instruction in its application to the case in which it was given, as presented by the evidence, all of which is upon the record.

We have then, in short, this state of facts. A flat-boat is moored at the Madison wharf, perhaps not as securely as is customary (though the preponderance of evidence is that it was); the steam-boat Wisconsin is lying at the same wharf, and had been so long, and so near to the flat-boat that she must be presumed to know...