Yarnold v. Bowers

• Decision Date: 08 September 1904
• Parties: YARNOLD v. BOWERS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 396

71 N.E. 799

YARNOLD v. BOWERS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

September 8, 1904

COUNSEL

Daniel J. Donahue, for plaintiff.

Wm. H Bent, for defendants.

OPINION

MORTON, J.

The plaintiff's intestate, a minor son, was drowned June 30 1899, in a collision between a small boat, in which he was and a steamboat owned and run by the defendants on Tyng's pond, in Tyngsboro, in this state, and this is an action to recover damages for the injuries sustained by the plaintiff's intestate in his lifetime in consequence of the alleged negligence of the defendants. There was a verdict for the plaintiff, and the case is here on exceptions by the defendants to the admission and exclusion of evidence and to the refusal of the court to rule, as requested, that the plaintiff was not entitled to recover.

We think that the ruling requested should have been given, and that the exceptions must be sustained. The defendants had a summer hotel on the southerly side of the pond at a place called 'Willow Dale,' and a small wharf for their steamboat. About half a mile in a northeasterly direction on the easterly shore of the pond was another small wharf, also belonging to the defendants, and used by them in their business, called 'Lakeview.' During the summer season the steamboat plied between these points, making two or three trips an hour, for the conveyance of passengers. Tyng's pond is about a mile long and three-quarters of a mile wide in its widest part. The testimony showed that the steamboat always followed the same course in going back and forth between the two wharves or landings. About 9 o'clock in the evening the plaintiff's intestate and a companion by the name of Thorne and two young ladies started in a small rowboat from Willow Dale to go to Lakeview. The night was dark. There was no moon, though some stars. Thorne did all the rowing, and had charge of the boat, with the consent of plaintiff's intestate. They were cautioned, before they started, to look for the steamboat. Thorne was familiar with the course of the steamer, and knew that she was then at Lakeview, and that her next trip would be from Lakeview to Willow Dale, and that on the route that they took to Lakeview they would meet the steamer and cross her course somewhere. They had been out only a few minutes when they heard the whistle of the steamboat blow, and heard the steamboat, and one of the young ladies told them to look out for the steamboat. The steamboat was then about 150 feet away. Thorne thereupon changed his direction so as to row towards the shore and directly across the steamboat's course, and continued to row in that direction until the collision occurred. At the time of the collision the plaintiff's intestate was standing up in the boat, and the shock caused him to fall overboard. As soon as those in...