The opinion of the court' was delivered, by
Askew, J.
Upon the general principle, applicable to the case, Hays, the defendant below, seems to have had every proper advantage, his first seven points having been answered by the court affirmatively and without qualification. It was only when those were reached which applied these principles to the circumstances of the case, any qualification became necessary. But of this he complains and contends that his points were in clear, distinct and explicit language, that he was entitled to a distinct affirmative answer without qualification. This, however, depends on the state of the evidence. A party is entitled to full, fair and explicit answers to his prayer for instruction, if pertinent; but when the evidence requires it, it is not only the right but the duty of the [140] court to make such qualification as will adapt the instruction to the facts, and enable the jury to make the discrimination necessary to decide the cause correctly. Abstract propositions and propositions which meet but a single view of the evidence, when it admits of another, if answered without qualification will often lead to error. Points may be very carefully framed, but as remai-ked by Hustón, J., in Coates v. Roberts, 4 Rawle 112, “ are often drawn with as much care as candour.” He emphatically denies that propositions of counsel must always be answered precisely as put, giving as the reason that the jury must find on all the facts and not on a partial view. This subject has been so well discussed by Lewis, J., in Rush v. Lewis, 9 Harris 72, I need only to refer to his remarks there and to add the cases of Utt v. Lang, 6 W. & S. 178, and Crowell v. McConkey, 5 Barr 176.
The eighth point of the defendant, assuming the duty of the plaintiff and his hands to aid the tug in managing the flotilla and to obey the orders of the tug’s pilot, was answered in the affirmative, but was qualified by saying that if sufficient orders were not given by the pilot or not given in time, negligence could be imputed in that as well as in any other respect. There was no error in this. When a steam-tug capable of locomotion, and, as we must presume from the undertaking, of managing the boat taken in tow, assumes control of the tow and its creAV, and to give the orders necessary; the time and the sufficiency of these orders fall within the duty of the tug. If they be insufficient or be given too late, it is negligence on part of the tug. The only question therefore is, whether there was evidence to justify the qualification and carry the case to the jury. Of this there is no doubt. John Paul testified that he saw the boat would strike the pier, but dared not pull until the word was given, as they (the tug) had the control. “ Just as Ave came up to the pier,” he continues, “ they halloed-, left, and at the word we pulled left, but before we got half a stroke the boat struck the pier.” In his cross-examination he says: “We did not run away and leave a steamboat man to pull at the oar, we pulled about half a stroke before she struck; when they called to us we were on the bow plank; it struck the head of the pier, not the side of the pier.” Samuel Staley says: “.We went on flatboats to obey orders of pilot. Just before struck, halloed to pull left, and Ave did one or tAvo strokes ; men jumped in and obeyed orders ; when halloed, very near to pier, only time to strike a stroke.” Wallace Gould says: “ John Paul and Samuel Staley were with me; we Avere at the oars. They called left, and we pulled left. We pulled pretty near one stroke after Ave were told to pull left, till it struck. We could not have done more.” There was ample evidence to go to the jury that the crew of the flatboat were not absent from their [141] oars, and that the order to pnll left was not given in time to avoid the disaster. This it is true was strongly rebutted by the defendant’s testimony, which tended to show that the order was given and the bell tapped in time, and was not obeyed by the flatboat crew, who were away from their oars, engaged in bailing. But the very contradiction in the testimony was the reason why the qualification should be introduced, in order that the evidence should be fairly passed upon by the jury.
For the same reasons the qualification of the answer to the ninth point was necessary. If the evidence of the plaintiff be true, his hands stood to their oars and obeyed orders until the very moment the boat struck and began to sink. If they did, then clearly their lives were in danger when it began to sink, and they were justified in then leaving their posts. It requires no straining of facts to induce any one of ordinary intelligence to believe that an open flatboat laden with metal, and drawing water within nine inches of the top of her siding, would go to the bottom very suddenly, when her side was crushed in and she was jammed between the tug and the pier. The contradiction of the defendant’s evidence only rendered it more necessary both sides should be fairly placed before the jury.
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The opinion of the court' was delivered, by
Askew, J.
Upon the general principle, applicable to the case, Hays, the defendant below, seems to have had every proper advantage, his first seven points having been answered by the court affirmatively and without qualification. It was only when those were reached which applied these principles to the circumstances of the case, any qualification became necessary. But of this he complains and contends that his points were in clear, distinct and explicit language, that he was entitled to a distinct affirmative answer without qualification. This, however, depends on the state of the evidence. A party is entitled to full, fair and explicit answers to his prayer for instruction, if pertinent; but when the evidence requires it, it is not only the right but the duty of the [140] court to make such qualification as will adapt the instruction to the facts, and enable the jury to make the discrimination necessary to decide the cause correctly. Abstract propositions and propositions which meet but a single view of the evidence, when it admits of another, if answered without qualification will often lead to error. Points may be very carefully framed, but as remai-ked by Hustón, J., in Coates v. Roberts, 4 Rawle 112, “ are often drawn with as much care as candour.” He emphatically denies that propositions of counsel must always be answered precisely as put, giving as the reason that the jury must find on all the facts and not on a partial view. This subject has been so well discussed by Lewis, J., in Rush v. Lewis, 9 Harris 72, I need only to refer to his remarks there and to add the cases of Utt v. Lang, 6 W. & S. 178, and Crowell v. McConkey, 5 Barr 176.
The eighth point of the defendant, assuming the duty of the plaintiff and his hands to aid the tug in managing the flotilla and to obey the orders of the tug’s pilot, was answered in the affirmative, but was qualified by saying that if sufficient orders were not given by the pilot or not given in time, negligence could be imputed in that as well as in any other respect. There was no error in this. When a steam-tug capable of locomotion, and, as we must presume from the undertaking, of managing the boat taken in tow, assumes control of the tow and its creAV, and to give the orders necessary; the time and the sufficiency of these orders fall within the duty of the tug. If they be insufficient or be given too late, it is negligence on part of the tug. The only question therefore is, whether there was evidence to justify the qualification and carry the case to the jury. Of this there is no doubt. John Paul testified that he saw the boat would strike the pier, but dared not pull until the word was given, as they (the tug) had the control. “ Just as Ave came up to the pier,” he continues, “ they halloed-, left, and at the word we pulled left, but before we got half a stroke the boat struck the pier.” In his cross-examination he says: “We did not run away and leave a steamboat man to pull at the oar, we pulled about half a stroke before she struck; when they called to us we were on the bow plank; it struck the head of the pier, not the side of the pier.” Samuel Staley says: “.We went on flatboats to obey orders of pilot. Just before struck, halloed to pull left, and Ave did one or tAvo strokes ; men jumped in and obeyed orders ; when halloed, very near to pier, only time to strike a stroke.” Wallace Gould says: “ John Paul and Samuel Staley were with me; we Avere at the oars. They called left, and we pulled left. We pulled pretty near one stroke after Ave were told to pull left, till it struck. We could not have done more.” There was ample evidence to go to the jury that the crew of the flatboat were not absent from their [141] oars, and that the order to pnll left was not given in time to avoid the disaster. This it is true was strongly rebutted by the defendant’s testimony, which tended to show that the order was given and the bell tapped in time, and was not obeyed by the flatboat crew, who were away from their oars, engaged in bailing. But the very contradiction in the testimony was the reason why the qualification should be introduced, in order that the evidence should be fairly passed upon by the jury.
For the same reasons the qualification of the answer to the ninth point was necessary. If the evidence of the plaintiff be true, his hands stood to their oars and obeyed orders until the very moment the boat struck and began to sink. If they did, then clearly their lives were in danger when it began to sink, and they were justified in then leaving their posts. It requires no straining of facts to induce any one of ordinary intelligence to believe that an open flatboat laden with metal, and drawing water within nine inches of the top of her siding, would go to the bottom very suddenly, when her side was crushed in and she was jammed between the tug and the pier. The contradiction of the defendant’s evidence only rendered it more necessary both sides should be fairly placed before the jury.
The errors assigned to the answers to the tenth and eleventh points may be considered together. The tenth was answered in the affirmative, and it is only the answer to the eleventh as applied to both points, which is impugned. But we discover no error in the principles asserted in this reply. It is the business of one who uses a tug for towing to know the capabilities of his tug, and its practical effects upon the boats he tows. Backing, as it is termed, is one of the useful features in the power of a tug, enabling it to hold its tow against the current and to control the movement where dangerous passages are to be effected or obstructions to be avoided. Being one of the uses of the tug, the owner is presumed to understand its effects. The flats made fast to the bow of the tug were out of the influence of the waves astern, but in backing the paddle waves flow towards the bow. Whether these waves would reach the stern of the flats and overflow the slight height of nine inches by swell, were facts which it is to be presumed the tug-owner would know better than the owner of the flats. Certainly it was his business to know the power of his paddles, the influence of the current, the swell produced and the probable distance it would reach. The allegation is that the flats were too deeply laden for towing safely. The answer of the court had reference to these things, which belong to the knowledge of the tug-man; and their doctrine in the language of the learned judge was this: “ But if the character and loading of the tow is visible and open to all — such as an open flat loaded with metal — and her depth in the water, and everything [142] in regard to her is patent to all, it would be culpable negligence on part of a towboat captain to undertake to tow such flat if too heavily loaded, or if containing too much water to be towed with safety. The towboat captain I hold to be the best judge of what his towboat can do, and if applied to tow a craft too heavily loaded or otherwise unfit to be towed he should decline, or, apprising the owner, make special terms as to the risk.” In view of the facts there was no error in this. There was an open boat laden with metal exposed to view, the water rising upon its sides within nine inches of the top, fastened partly ahead of the tug. Now who should know whether backing might be necessary, and if done whether the waves would reach the tow — how high their swells and whether they would probably flow into the toAV ? This is one of those undertakings which imply sufficient knowledge and skill to perform it safely, and contemplated therefore a knowledge on part of the tug-man of the effects produced by his tug, and their probable influence upon the open and visible condition of his tow. As to all that was not plainly open and visible to- his view, the court conceded,that no duty lay upon him.
The errors assigned to the general charge are not supported. Unless it be manifest from the want of a proper instruction that the jury has fallen into error, it is not the practice of this court to reverse for mere omissions, when no instruction is prayed for.
The plaintiff in error complains that the court left the standard of diligence to the mere conception or notion of the jury. .This is not correct. It is only by detaching this portion of the charge from its proper connection, that it can be made obnoxious to the criticism of the argument. In this and several preceding paragraphs the judge explained in general terms the nature and degree of the care,, skill and diligence demanded by the law in those undertakings which require reasonable skill and diligence. In the sentence immediately preceding he had said :■ “ A party employed in any position of trust over the property of others, is held to the same care and attention that he would exercise over it, were the property his own ; but in ascertaining what that care and attention is, which he would exercise were the property his own, we must measure them by other prudent and reasonable men as the standard.” Now it is in reference to this measure of care and attention the language excepted to is used, and the judge continuing his thought, gays: “We must compare his conduct with what we may conceive careful men would have done under similar circumstances,” which was as much as to say — You must make the conduct of prudent and reasonable men the standard; and what you think a prudent and reasonable man ought to have done under the circumstances, that you would require of this person under the circumstances. It was not that the jury should follow their own notions, letting go of the facts in the case ; but, [143] taking the facts, that they should measure the care and diligence required under those facts by the same rule a reasonable and prudent man, acting in his own affairs, would exercise for himself under like circumstances. It is only by disconnecting kindred sentences and by severe criticism of the word conceive, that the learned judge can be convicted of error ; hut “ to conceive” is as often used to signify “ to think,” “ to understand,” “ to have a complete idea of,” as it is to imagine, to fancy: Webster’s Dictionary.
None of the errors being sustained,’the judgment is affirmed.