Young v. The Cape Fear Steamboat Co.

• Decision Date: 30 June 1870
• Citation: 64 N.C. 399
• Court: North Carolina Supreme Court
• Parties: ANDERSON & YOUNG v. THE CAPE FEAR STEAMBOAT COMPANY.

64 N.C. 399

ANDERSON & YOUNG

v.THE CAPE FEAR STEAMBOAT COMPANY.

Supreme Court of North Carolina.

June Term, 1870.

*1 In a case where there are a number of witnesses on each side who contradict each other, it would be improper (generally,) for the Court to select one of them, and instruct the jury that if they believed him, they must find their verdict in a particular way, because, among other reasons, that would be to make the case turn upon his veracity, whereas he might be truthful, and yet, his testimony be liable to modification, or explanation by other parts of the testimony.

Where fire was communicated to a barn by sparks from a Steamboat, and the boat was provided with an effectual “spark-extinguisher” which was not at the time in use: Held, that the fire was caused by negligence upon the part of the Steamboat.

CASE, tried before Russell, J., at December Special Term 1869, of NEW HANOVER Court.

The plantiffs sought to recover damages from the defendant for the negligence of its servants in managing the Steamboat, “Gov. Worth,” whereby the barn of the plaintiffs, and the machinery therein were destroyed by fire communicated by sparks from the smoke-stack of said Steamboat, while navigating the Cape Fear River in April, 1867.

Several witnesses were examined for both plaintiffs and defendant. Among the witnesses for the defendant, was A. P. Hurt, the Captain of the Steamboat, at the time of the alleged injury, who testified that he had been a steamboat Captain for 20 years, and was familiar with the navigation of the Cape Fear River; that he had command of the “Gov. Worth” on the day the barn was burned; that when he left the wharf at Wilmington, a strong wind was blowing from a direction East of South, and the Steamboat, when loosed from the wharf, was carried by the wind out in the river without using her paddles; that she left the wharf about 2 o'clock in the afternoon; that the plaintiffs' barn was on the East side of the river, about 3 1/2 miles from Wilmington; that there was a long reach in the river, up which the Steamer went towards the barn, and that said reach was parallel with the course of the river at Wilmington, and that the wind was carrying the sparks diagonally across the river, and not towards the barn; that there was a sharp bend of the river at that point where the barn was located, (the barn being on the “cove side,”) and that the river was 150 yards wide at that point; that in going up, the Steamer hugged the shore opposite the barn so closely as to attract the observation of a passenger, and that she was about 150 yards from the barn while passing; that the Steamer was going at her usual rate of speed with the usual amount of fire and steam; that she threw fewer sparks than any Steamer on the river, and had the highest smoke-stack on the river; that he never knew sparks to fly from her smoke-stack further than 20 or 30 yards, and that she was the safest boat on the river; that about 200 yards before reaching the barn he passed the Steamboat “Gen. Howard” coming down the river on the side next the barn, and that the wind was blowing hard at that time.

*2 Capt. Hurt further testified, in answer to the cross-examination of plaintiff's counsel, that he used no spark-arrester at that time, because he had tried various experiments with spark-arresters of a half dozen kinds and found them impracticable, as they would choke up the smoke-stack and get knocked off by limbs and trees on the river banks, and that he had found that using a smoke-stack 40 feet high, as he did on the “Gov. Worth” was the best means of preventing the emission of sparks.

He stated that he had on the boat, connected with the boiler and smoke-stack, an appliance that he sometimes used to avoid the danger of setting fire to buildings by sparks, which on the examination, was termed a “spark extinguisher;” he said that on coming into the City of Wilmington, he always used this arrangement, and that he sometimes used it by partially putting it on when passing buildings on the river bank. In answer to a question by plaintiff's counsel, he stated that he did not know that it was used at all in passing the barn in question. In answer to a question by defendant, he said that he could use this appliance without difficulty when coming into the City, because he always had on a good head of steam and the boat could be got up to the wharf easily, but that he could not keep it on for any considerable length of time without very seriously interfering with the progress of the boat. He further said that there were many buildings on the river bank between Wilmington and Fayetteville, and that he thought if he put the extinguisher on every time he passed a building it would take two days to make the trip insted of one as at present.

John C. Bailey, a witness for the defendant, testified that the Steamer “Gov. Worth,” on the occasion in question had a contrivance for arresting sparks which was a part of her machinery, (the appliance spoken of by Capt Hurt as a ““spark extinguisher”) and by means of which sparks could be arrested by turning the “exhaust” into the smoke-stack, that it was a good contrivance for that purpose but could not be used for any great length of time without stopping the boat, and that it could be used as much as twenty minutes at a time without materially interfering with the progress of the boat.

A. D. Young, one of the plaintiffs, testified that the barn had been standing by the side of the river where it was when burned, for 17 years; that on the day when it was burned he went from town to the plantation where the barn was, in a boat; that in going up the river he met the Steamer, “Gen. Howard” which had passed the barn on its way to town, and at the points of meeting was 1 1/4 miles below the barn; that about a half hour after meeting said Steamer he went to the barn and went over it and saw no fire anywhere near it, and that there was no fire in the fields and none anywhere nearer than the dwelling house which was a half a mile distant; that he left the barn and about ten minutes afterwards the Steamer, “Gov. Worth” passed the barn on its way up the river, and in a very few minutes after it passed he saw the barn burning; that everything was very dry at the time, that the wind had been blowing very hard for four or five hours; that it was a little West of South, and in a direction to carry sparks from a Steamer going up the river directly towards the barn.

*3 Daniel Stevenson, witness for the plaintiffs, testified that he was fishing on the other side of the river nearly opposite the barn, that he saw the Steamer, ““Gov. Worth,” and it passed within fifty yards of the barn; that the wind was blowing very hard, that a great quantity of very large sparks was flying from the smoke-stack of the Steamer directly towards the barn; that he saw the sparks blown to the barn, and upon it, and in a very little while he saw the barn in a blaze, and that the wind was blowing from a little West of South. Richard Meares, witness for the plaintiffs, testified that he was on the same side of the river with the barn, and about 300 yards from it; that he saw the Steamer, “Gov. Worth” coming up the river; that the wind was blowing hard and blew the Steamer in towards the shore and near to the barn, and that he saw the sparks fly from the smoke-stack of the Steamer upon the barn and set it on fire.

John McRae, witness for plaintiffs, testified that he had been fishing in a creek on the same side of the river with the barn and about one-fourth mile from it, and that he had spread his net on the bank to dry; that when the “Gov. Worth” turned a bend in the river about a mile above the barn, a great quantity of sparks was blown from her smoke stack into the creek where he was; that thinking his net in danger he ran to save it and saw the sparks from the Steamer set fire to the stubble in the field which was burned off, and soon afterwards he saw the barn on fire.

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