N. Y., P. & N. R. R. v. Cooper

9 S.E. 321, 85 Va. 939, 1889 Va. LEXIS 109

Opinions

Lacy, J.,

delivered the opinion of the court.

This case, so far as it is necessary to be stated, is as follows: The Portsmouth, a steam-tug, belonging to, and in the employment of, the plaintiff in error, with a railroad barge in tow, started from the Norfolk Southern railroad wharf in Berkley, a suburb of Norfolk, about the hour of 8:45 P. M., to go to the wharf of the plaintiff in error at the foot of Water street, in Norfolk city. Just above Norfolk city the Elizabeth river is divided into two branches,, and the village of Berkley is situated on the point between the two branches ; while the cities of Norfolk and Portsmouth, lying on each side of Elizabeth river, stretch upwards along the said river opposite to Berkley, and the said river constitutes what is called the inner harbor of. Norfolk. The village of Berkley, at the head of the Norfolk harbor, lies between the upper ends of the cities of Norfolk and Portsmouth, separated from Norfolk by the eastern branch of Elizabeth river, and from Portsmouth by the southern branch, and it lies nearer to Portsmouth than to Norfolk. ' A ferry-boat called the “ Manhasset,” which is a small passenger steamboat, plies regularly at short fixed intervals across-the Elizabeth river between the ferry-slip in Norfolk and the ferry-slip in Portsmouth. These slips not being opposite, the course of the ferry-boat is diagonally across the Elizabeth river. The two courses of the said boats, as indicated, crossed; and in respectively moving along the said courses on the night in question, which was dark and stormy, a gale blowing from the north against the bow of the tug and her tow, which was loaded heavily with three rows of freight cars, on the port side of the ferry-boat, a collision occurred, hy which the tow of the tug broke up the ferry-boat, carrying away the whole of the ladies’ cabin and the wheelhouse on the port side, and killing the wife of the defendant in error. When the tug left her wharf in Berkley, she was two hundred and thirty-three yards from the Portsmouth ferry-slip diagonally across the southern branch, and in full view of it, as shown hy its lights. The distance from Norfolk to Portsmouth is less than two-thirds of a mile, and it takes the ferry-boat between five and six minutes to make the whole distance, and when the collision occurred the ferry-boat, was about three-fourths of the way across from Norfolk to Portsmouth. The action was brought by the defendant in error against both the plaintiff in error and the owners of the ferry-boat, and judgment recovered against each in the sum of $4,750. The plaintiff in error applied for and obtained a writ of error from this court.

The first error assigned here is the action of the circuit court in giving the instruction asked for by the plaintiff, as set forth in bill of exceptions “ A,” in effect, that if the jury should believe from the evidence that the navigators of both the ferry-boat and the tug and barge were guilty of carelessness and negligence in so doing, and that the death of Mrs. Fanny L. Cooper, the wife of the defendant in error, was caused hy the negligence of both those navigating the ferry-boat and tug and barge, both contributing thereto, then the jury should find against all the said defendants ; hut if they believed the injury was caused hy the negligence of those only who navigated either the ferry-boat on the one hand, or the- tug and barge on the other, then the verdict should be against the party so causing the injury. The objection to this instruction is that each boat is held to the same -degree of diligence, whereas the defendant owner of the tug and -tow claims that as the deceased, the said wife of the defendant in error here, was a passenger on the ferry-boat, that a contract relation existed on the part of the ferry-boat and the passenger, .and called for extraordinary vigilance, aided by the highest skill, and rendered the ferry-boat liable for the slightest negligence, whereas the tug and tow had no contract relation with the deceased, and were liable to exercise only ordinary care and vigilance, which is embodied in an instruction set forth in bill of exception “ I,” which was refused by the court. This contention of the plaintiff in error is based upon the idea that the negligence of the carrier is imputable to the passenger who has confided himself to its care; it being decided in the English case of Thorogood v. Bryan, 8 C. B. 115, where a passenger, in alighting from an omnibus, was thrown down and injured by the negligent management of another omnibus, that an action could not be maintained against the owner of the latter if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury; which was approved in the case of Armstrong v. Railway Co., L. R. 10 Exch. 47, decided in 1875, (12 Moak, Eng. R. 508;) Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Wis. 513; Lockhart v. Lichtenthaler, 46 Pa. St. 151; Payne v. Railroad Co., 39 Iowa, 523; Carlisle v. Sheldon, 38 Vt. 440,—and in some other cases.

Clark, J., said in the case of Noyes v. Town of Boscawen, Am. L. R. 27-117: “The rule that the negligence of the driver or manager of a vehicle is to be treated as the negligence of a passenger, in an action by the passenger against a third party, is put upon the ground that the passenger, in selecting the conveyance, has placed himself in the care of the driver, and hence must be taken to be in the same position; and the driver, as to third persons, is to be so far regarded as the agent or servant of the passenger as to make the latter chargeable with the driver’s negligence, and hence not entitled to recover, although he may have been free from fault himself.” The learned judge, proceeding, said: “In the absence of any relation of master and servant, or principal and agent, when each is independent of control by the other, why should a passenger be chargeable with the driver’s negligence any more than the driver with the passen ger’s negligence?” We think that the traveler should be held to the exercise of reasonable care only in the selection of a driver ; and, being in no default in the choice of a conveyance, and having no control over the management of the team, he should not be held responsible for the negligence of the driver, which he could not reasonably anticipate or prevent. Lopes, J., saying in the same case, upon a rehearing (Thorogood v. Bryan, and Armstrong v. Railway Co., having both been in the meantime overruled in the English court of appeals in the case of The Bernina, L. R. 12 Prob. Div. 58): “A passenger in an omnibus, whose injury is caused by the joint negligence of that omnibus and another, may, in my opinion, maintain an action either against the owner of the omnibus in which he was carried, or the other omnibus, or both,”—and was clearly of opinion to overrule Thorogood v. Bryan, as had been many times held before that. Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228; Bennett v. Railroad Co., 36 N. J. Law, 225; Railroad Co. v. Steinbrenner, 47 N. J. Law, 161; Transfer Co. v. Kelly, 36 Ohio St. 86, 91; Railway Co. v. Shacklet, 105 Ill. 364; Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Railroad Co. v. Case’s Adm’r, 9 Bush, 728; Thompkins v. Railroad Co., 4 Pac. Rep. 1165; Little v. Hackett, 116 U. S. 366. The doctrine of Thorogood v. Bryan being declared to be unsound and in conflict with the principle that no one should he denied a remedy for injuries sustained without fault by him, or by a party under his control or direction ; that the relation of master and servant, and principal and agent does not exist in cases where the passenger has no control over the driver; that it is the right to control the conduct of the agent which is the foundation of the doctrine that the master is to he affected by the acts of his servant, and that no one is responsible for the negligence of another, unless the latter is his servant or agent. The doctrine of Thorogood v. Bryan was much criticised by the English judges, and has been at last overruled there. It was never generally followed in this country, and may he now properly said to be altogether discarded, and rightly so. The passenger has no control over the driver of an omnibus, and certainly none over the conduct of a railway train or steamboat, on which he has taken passage. He has no control over the movements of either, and is in fact powerless to prevent the negligence of either. As is pointed out in the case of The Bernina, supra, if the passenger is so identified with the driver as to be deemed to be guilty of his negligence, and therefore to be deprived of a right of action, it must necessarily follow that, in addition to his rights being curtailed, his liabilities are correspondingly enlarged, and the result is that the passenger in an omnibus or other public conveyance is necessarily liable to third parties for the negligence of the driver, which could he maintained upon no sound principle. See note in Amer. Rep. 27, 129.

In the case of Webster v. Hudson River Railroad Co., 38 N. Y. 260, which was a case of a passenger by one railroad suing another railroad for the consequences of a collision, it was held that, the negligence of the defendant, whereby plaintiff was injured, being established by evidence, and there being no pretense that the plaintiff was guilty of any personal negligence, the negligence of a third party contributing to the injuries furnishes no excuse for the negligence of the defendant, and no reason why it should not respond in damages. Hence, the refusal of the judge to charge that, if the jury should find that the injuries were in part caused by the negligence of a third party, the plaintiff could not recover from defendant, was not error.

And so in this case the refusal of the court to instruct the jury that one boat owed a greater degree of diligence to the passenger than the other was not error, because the negligence of a third party could not be held to be the contributory negligence of the passenger, so as to bar his right to recover ; the question being, not the degree of vigilance due by the third party, but whether the defendant was guilty of negli gence which contributed to the injury ; if the defendant was so negligent, then it was no defense for it that some other party was also guilty of negligence, unless that other party was such that its negligence could be imputed to the plaintiff by its being the servant or agent of the plaintiff, and under his control and direction which was not this case.

But it is argued that in the case of Norfolk & Western Railroad Co. v. Burge, 84 Va. 63, it was held that it was not error to refuse an instruction asked by the defendant because it failed to define the degree of care and caution required of the plaintiff to entitle him to recover. In that case the degree of care and caution or the contributing negligence of the plaintiff was of importance, because if he had contributed to the injury by his negligence he might be barred of recovery, and would be, unless the defendant, after discovering his negligence, had failed to use due diligence, notwithstanding, to prevent the injury. Dun v. Railroad Co., 78 Ya. 645. But in this case it was not asked that the court should instruct the jury as to negligence of the plaintiff—none being claimed against him; but the request was as to the negligence of the third party, the co-defendant steamboat, which was properly refused, for reasons stated already in what has gone before. The Washington v. The Gregory, 9 Wall. 513; The Alabama v. The Game-Cock, 92 U. S. 695; Colegrove v. New York & New Haven Railroad Co. and New York and Harlem Railroad Co., 20 N. Y. 492; Chapman v. New Haven Railroad Co., 19 N. Y. 341.

The next assignment of error is, that the court gave the instruction set forth in the defendant’s bill of exceptions “B,” which was, in effect, that if the jury believed the stated circumstances as set forth above; that if the tug with its tow left the Berkley wharf when the ferry-boat was not in its, Portsmouth slip, to go to the N'orfolk wharf, and to cross the course of the ferryboat, then shortly due at Portsmouth, with the tide at a strong Hood, in a dark and stormy night, and none of the color-lights of the tug or tow visible to the Manhassett, but that the same were hid by the relative position of the tug and barge, and that they could not be seen by any person on the ferry-boat, that then those navigating the said tug and harge were in fault and guilty of .negligence. There can be no doubt whatever of the propriety of this action of the court. The barge was an immense object, with all its colored lights hidden from view by its going backwards, and the tug, with its colored lights on the opposite side of the barge, very much lower than the barge, and the three rows of cars thereon,' and altogether out of sight, while a gale of wind and a flood tide impressed their forces upon the ferry-boat. Under these circumstances the tug and barge bore down upon the ferry-hoat, they were enveloped in total darkness except the stern light, a lantern upon the cars on the harge, which was at best misleading; and this not by an accident which resulted from the equal obscurity of the ferry-boat, so that its locality in like manner could not be discovered by the navigators of the tug and barge. But with all the lights of the ferry-hoat brightly burning, both colored and white lights, and all her saloon windows throwing a bright light all around her, the lights of her Portsmouth slip close hy showing her destination, and the lights of her Norfolk slip, not far off, showing her departure, and her course being well known (as well as their own obscurity) to the navigators of the tug and harge, it was in every sense an imprudence to attempt to cross her bow close upon her, or to rely upon the signal of a whistle to deflect her course, against the contingency of the gale, which was blowing against the tug, carrying back the sound of any whistle the tug might sound, so that it might not he heard in the ferry-boat. Whatever light the ferry-boat showed the tug when she left her Norfolk slip, she was not then either meeting or crossing, being too far off to do either, and her-exact course was known and well defined, and the tug should have passed astern of her, especially when she was freighted with passengers; but before the collision the ferry-boat showed her port light, and the tug was hound to pass on her port side, and that this was now impossible was the fault of the tug. The rule of navigation requires the steam-vessel, such as the tug, to carry a green light on the starboard side, and a red light on the port side, in each case obscured astern and showing only in front The tug had these, but they were hidden completely by her tow. The barge had these, but, as it was moving stern foremost, its lights were obscured also. It was negligence thus to attempt to cross the course of the ferry-boat across her bow, when she was thus driven by wind and tide, at an unusual speed, in total ignorance of the proximity of her immense and invisible destroyer. There was no error in the action of the court in giving this instruction. Rev. St. U. S. § 4233, rules 4, 5, p. 816; The Pennsylvania, 19 Wall. 126, 135; The Eleanora, 17 Blatchf. 102; Samuel H. Crawford, 6 Fed. Rep. 906; The Frank P. Lee, 30 Fed. Rep. 277; The Titan, 23 Fed. Rep. 414; Briggs v. Day, 21 Fed. Rep. 727; Marshall v. Tug Conroy and Barge "E,” 2 Fed. Rep. 78 ; The Howard, 30 Fed. Rep. 281.

The next assignment of error which we will consider is the action of the court in refusing to set aside the verdict and grant a new trial to the defendant, as set forth in bill of exceptions “L.” We think there was no error in that action of the court. The evidence has been sufficiently set forth already, and the jury were the proper triers of the facts ; and the circuit court, under the circumstances of this case, rightly refused to set aside their verdict. In this court this question is considered as upon a demurrer to the evidence by thq plaintiff in error, and there is no principle upon which we can reverse the finding of the jury in this case.

As to negligence of the Manhassett, we have no concern with that. A judgment was rendered against its owners because, as stated in argument, there was no special official lookout. That boat has not appealed, and the verdict and judgment of the court below as to it are final; and for reasons already stated the question as to its negligence cannot affect the plaintiff in error in a suit by one of the passengers in the ferry-boat against it.

This disposes of all of the questions raised and relied on in the argument here and in the petition. The same questions are stated in different forms, and under different heads, but we have considered and substantially disposed of them all in what we have already said, and it would be of no benefit to prolong this discussion further. We think, after a careful consideration of the whole case as presented here, that there is no error in the judgment complained of, and the same must be affirmed.