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EUCLID WILLIAMSON, THOMAS F. ECKERT, AND JOHN WILLIAMSON, PLAINTIFFS IN ERROR, v. ALEXANDER B. BARRETT

December 1, 1851

EUCLID WILLIAMSON, THOMAS F. ECKERT, AND JOHN WILLIAMSON, PLAINTIFFS IN ERROR,
v.
ALEXANDER B. BARRETT, ROBERT CLARK, NATHANIEL D. TERRY, HENRY LYNE, JAMES T. DONALDSON, WILLIAM BROWN, AND JOHN B. SPROWLE.



THIS case was brought up by writ of error, from the Circuit Court of the United States, for the District of Ohio. It was an action of trespass on the case brought by the owners of the steamboat Major Barbour, (the defendants in error,) against the owners of the Paul Jones, another steamboat, for injuries resulting from a collision between the boats. On the 3d of February, 1848, at a place upon the Ohio River, about one hundred miles below Louisville, the Major Barbour was descending the river, and a collision ensued between her and the Paul Jones, which was ascending; by means of which the Major Barbour became filled with water and sunk. On the 17th of February, 1848, Barrett and others being citizens of Kentucky, brought an action of trespass on the case, against Williamson and the other owners of the Paul Jones, in the Circuit Court of the United States, for the District of Ohio. In October, 1849, the cause came on for trial upon the general issue plea. The jury found a verdict for the plaintiffs for $6,714.29. The following is the bill of exception taken upon the trial. 'Seventh Circuit Court of the United States, Ohio District, Alexander B. Barrett, Robert Clark, Nathaniel D. Terry, Henry Lyne, James T. Donaldson, William Brown, John B. Sprowle, v. Euclid Williamson, Thomas F. Eckert, John Williamson. Be it remembered, that on the trial of this cause, evidence was given, showing that before and at the time of the collision mentioned in the pleadings in this cause, the plaintiffs' boat, the Major Barbour, was decending the Ohio River, and the defendants' boat, the Paul Jones, was ascending the same river, and heavily loaded, and the Major Barbour was light, the Paul Jones being a much larger boat than the Major Barbour. It was claimed by the plaintiffs, and testimony offered by them, tending to show that their boat was descending the middle of the river, and that the collision took place at or about the middle of the river. It was claimed on the part of the defendants, and evidence was offered to show, that their boat was ascending near the Indiana shore, and that the plaintiffs' boat was also running near that shore, and that the collision took place near that shore. The plaintiffs also offered evidence tending to show that the Paul Jones, a short time before the collision, suddenly turned out of the Indiana shore, and ran across the river into the plaintiffs' boat; and the defendants offered evidence tending to show that the plaintiffs' boat, a short time before the collision, suddenly turned out from the Indiana shore, and crossed the bow of the Paul Jones. Evidence was also given tending to show that the engines of the plaintiffs' boat were stopped, and the boat floated for some time previous to the collision; but it was admitted that she did not back her engines; and it was claimed by the plaintiffs that she was not bound by the rules or usages of navigation to back her engines. Evidence was also given tending to show that the Paul Jones, some time previous to the collision, stopped her engines, and then reversed her engines to back the boat, and made from one to three revolutions back, and was actually backing at the time of collision. And it was claimed by the plaintiffs, that their boat's engines were stopped, and the boat floating as soon as danger of collilision was anticipated; and on the part of the defendants it was claimed, that the said Major Barbour's engines were not stopped sufficiently early, and that owing to that, and her not attempting to back her engines, she contributed to the collision. The plaintiffs and defendants also offered evidence of pilots on the Ohio River, tending to show that boats navigating the Ohio River, were bound to observe the following rules in passing each other: The boat descending, in case of apprehended difficulty or collision, was bound to stop her engines, and float at a suitable distance, so as to stop her headway; and the boat ascending should do the dodging or manoeuvring. And some of the pilots also testified, that it was also the duty of both boats to back their engines, so as to keep the boats apart when danger was apprehended, and to do all they could to prevent a collision; but the greater part of them said the rule of the river required the descending boat to stop its engines and float, being at the place of collision, near the middle of the river. And the defendants' counsel asked the court to instruct the jury that, if by backing the Barbour's engine, in addition to stopping and floating, the collision could have been avoided, and the plaintiffs did not back her engines, the plaintiffs could not recover, and that plaintiffs were bound to make use of all the means she had to prevent a collision. And thereupon the court charged the jury as follows: That if the Major Barbour was in her proper track for a descending boat, as proved by several witneses, near the middle of the river, and the Paul Jones in ascending the river was in her proper track, near the Indiana shore, and she turned out of her proper course, across the river, or quartering, in the language of some of the witnesses, so as to threaten a collision with the Major Barbour; and that as soon as this was discovered the Major Barbour stopped her engine, rang her bell, and floated down the stream, as the custom of the river required, leaving the ascending boat the choice of sides, and this was the law of the river, that on the near approach of the Major she was not required to back her engines, as that might bring her in contact with the other boat, but might presume that the Paul Jones did not intend to run into her, and that for an injury done to the Major Barbour under such circumstances, by the Paul Jones running into her, the plaintiffs are entitled to recover such damages, as appears from the evidence was done to the Major Barbour. That if the Major Barbour turned out of her course, running near the Indiana shore, and this turning out of her course contributed to the collision, the plaintiffs could not recover. That where both boats were in fault, the plaintiffs could not recover. That in such case, the fault of the Major Barbour must be such as led to or contributed to the collision. That if the collision was the result of an unavoidable accident the plaintiffs could not recover. That should the jury find for the plaintiffs, they will give damages which shall remunerate the plaintiff for the damages incurred, necessarily, in raising the boat, and in repairing her; and also for the use of her during the time necessary to make the repairs and fit her for business. That the jury were not bound to give interest, as claimed by the plaintiffs, but they would give such sum in damages as they shall deem just and equitable under the circumstances. To which charge of the court, so far as it relates to charging that the Major Barbour was not required to back her engines, but might presume that the Paul Jones did not intend to run into her; and also to so much of the charge as directs the jury that they might give damages for the use of the boat during the time necessary to make the repairs and fit her for business; and also to the refusal of the court to charge or instruct the jury as requested, the defendants, by their counsel, except, and pray this their bill of exceptions may be signed and sealed, which is done and ordered to be made a part of the record. JOHN McLEAN, [SEAL.] H. M. LEAVITT, [SEAL.] Upon this exception, the case came up to this court and was argued by Mr. Chase and Mr. Lincoln, for the plaintiffs in error, and by Mr. Crittenden, for the lefendants in error. A brief was also filed by Mr. Fox, for the plaintiffs in error. The counsel for the plaintiffs in error, contended that the action should have been 'trespass' and not 'trespass on the case,' because the declaration charged that act to have been done by the defendants below, they being in possession of the boat at the time. The counsel for the plaintiffs in error then contended, that there were errors in the instructions of the court, both as to the collision and the damages. 1. As to the collision, what was the question before the court below, and upon which the jury were to decide? It was this. Was the defendants' boat navigated carelessly or unskilfully, and was the plaintiffs' boat from that cause injured. If so, did the plaintiffs in any way substantially contribute to such injury. The plaintiffs below were bound, 1st, to make out fault in those navigating the Paul Jones, directly causing their damages, and 2d, a freedom of those navigating the Major Barbour from any fault substantially contributing to the same. If the plaintiffs below contributed in any way or to any extent, if they were in fault, although in a much less degree than the defendants, and such fault substantially contributed to the injury, they were not entitled to a verdict. The judgment, if rendered, was to be for the whole damages, and the jury had no right to distinguish between the degrees of fault of the parties. Of this there is no dispute. I refer the court to a few of the many authorities upon the above position. Pluckwell v. Wilson, 24 E. C. L. Rep. 368; 5 Carr. & Payne, 375; Luxford v. Large, 24 E. C. L. Rep. 391; 5 Carr. & Payne, 421; Handyside v. Wilson, 14 E. C. L. Rep. 429; 3 Carr. & Payne, 527; Wolf v. Beard, 34 E. C. L. Rep. 435; 8 Carr. & Payne, 373; Sills v. Brown, 38 E. C. L. Rep. 248; 9 Carr. & Payne, 601; New Haven, &c. v. Vanderbilt, 16 Conn. Rep. 420. There are numerous others to the same effect. There is nothing to be found in the books in opposition to the following statement of the law, taken from the case of Pluckwell v. Wilson, a case of collision between carriages: 'If it for the jury to say whether the injury to the plaintiff's chaise was occasioned by negligence on the part of the defendant's servants, without any negligence on the part of the plaintiff himself; for if the plaintiff's negligence were in any way concerned in producing the injury, he cannot recover.'Chancellor Kent very briefly states the rule thus: 'But according to the English and American rules in the courts of common law, if there be fault or want of care on both sides, or the loss happen without fault on either side, neither party can sue the other.' 3 Kent's Com. 5th Ed. 231. The question to be tried, then, was one of negligence or want of care. 2. Upon the subject of damages, the counsel contended that the court erred in charging the jury that the plaintiffs below could recover for lost time or for compensation for the use of the boat while undergoing repairs, there being no allegation of such damages. There are authorities against such damages in cases where the pleadings are properly framed. Blanchard v. Ely, 21 Wend. 343; Boyd v. Brown, 17 Pick. 453; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 2 Wheat. 546; De Armistad de Rue, 5 Wheat. 385; Smith v. Condry, 1 How. 28; Conral v. Pacific Insurance Company, 6 Pet. 262. The case of Blanchard v. Ely, is direct to the point. They are considered too speculative, or problematical. The use of the boat might have been of benefit, or might have involved the plaintiff in trouble; might have sunk them money by unprofitable business, or by a collision with some other boat, or she might have sunk by a danger of the river. It is not at all certain that she would have been of any value to them. I admit, however, that there are cases directly in opposition to Blanchard v. Ely. But they are cases where there was a special allegation of such damages, and in that, the case before the court is distinguished from them. There was such allegation in the case of New Haven Steamboat & Transp. Co. v. Vanderbilt, 16 Conn. 420. Also in the cases of Haldeman v. Beckwith, which was before this court two years ago. The declarations were so similar to these two cases, that I had that in the former case printed for the use of this court, when the case of Haldeman v. Beckwith was before them. See Appendix, A. In the report of the case in the 16th Conn. it does not appear that there was a special allegation of loss of time, and that the declaration gave the party direct notice of his claim. But there was such allegation. Such damages could not be recovered in this case, unless it be what the law denominates general damages. The object of pleading is to give notice to the other party of the claim set up, that he may come prepared to defend it; and nothing can be recovered but that which naturally and necessarily flows from what is alleged. From the declaration in this case, no one would suppose, that any thing but a total loss of the boat would be claimed. An entirely different claim was, however, interposed. In case of a total loss, the value of the boat is the rule of damages. The Apollon, 9 Wheat. 362. Now the expense of raising and repairing the boat, with compensation for lost time, may have been much greater than the whole value of the boat. If that be the claim set up, the party would come prepared with evidence, as to these points: was it prudent to raise and repair her? was not the party too long in doing it? did he not pay too much? and was not the value of use of the boat, as given in evidence by him, greater than it really was? These considerations show, I think, that the allegation for a total loss does not necessarily or naturally include the damages allowed. (Upon both of the above points, the arguments of the counsel were very elaborate.)

The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Ohio.

The plaintiffs in the court below, the defendants here, who were the owners of the steamboat Major Barbour, brought an action against the defendants, the owners of the steamboat Paul Jones, to recover damages occasioned by a collision upon the Ohio River on the 3d February, 1848.

The Major Barbour was descending the river at the time, and the Paul Jones ascending, the latter heavily laden and of much larger size than the former.

Evidence was given by the plaintiffs tending to show, that their boat was about in the middle of the river at the time the collision took place; that the defendants' boat was ascending the Indiana shore, and that a short time before the collision she suddenly changed her course and left the shore, running across the river into the Major Barbour, causing the damage in question. While on the part of the defendants, it was claimed, and evidence given to show, that the plaintiffs' boat was descending near the Indiana shore, and that the collision occurred near that shore, and that the plaintiffs' boat a short time before it happened suddenly turned out from the shore and ran across the bow of the Paul Jones, causing the damage.

Evidence was also given tending to show that the engine of the plaintiffs' boat was stopped, and the boat floated as soon as the danger was discovered, and for some time previous to the collision, but, it was admitted she did not back her engines, and it was claimed that she was not bound to do so, according to the rules and usages of the navigation. While, on the part of the defendants, it was claimed, and evidence given to show, that the Paul Jones, some time before the collision, stopped her engines, and reversed the same to back the boat, and had made from one to three revolutions back, and was actually backing at the time of the collision; and also that the engines of the plaintiffs' boat were not stopped sufficiently early, and owing to that, and not attempting to back her engines, she contributed to the collision.

Evidence was further given tending to show, that boats navigating the Ohio river were bound to observe the following rules in passing each other: The boat descending, in case of apprehended difficulties, or collision, was bound to stop her engines, and float, at a suitable distance, so as to stop her headway; and the boat ascending, to make the proper manoeuvre to pass freely.

When the evidence closed, the counsel for the defendants requested the court to instruct the jury, that the plaintiffs ought not to recover, if the collision could have been avoided by reversing the engines and backing their boat, in addition to stopping and floating; and, that the master was bound to use all the means in his power to prevent a collision.

And thereupon, the court among other things charged, that if the Major Barbour was in her proper track for a descending boat, near the middle of the river, and the Paul Jones in ascending the river was in her proper track near the Indiana shore, and the latter turned out of her proper course across the river or quartering, as stated by some of the witnesses, so as to threaten a collision; and that as soon as discovered, the Major Barbour stopped her engine, rang her bell, and floated down the stream, as the custom of the river required, leaving the ascending boat the choice of sides to pass her, and this being the law of the river, she was not, on the near approach of the boat, required to back her engine, as that might bring her in contact with the other boat. She had a right to presume the Paul Jones did not intend to run directly into her. And that, if any injury was done to the Major Barbour, the plaintiffs' boat, under such circumstances, by the Paul Jones running into her, the plaintiffs were entitled to recover.

The court further charged, that, if the jury should find for the plaintiffs, they ought to give such damages as would remunerate them for the loss necessarily incurred in raising the boat, and in repairing her; and also for the use of her during the time necessary to make the repairs, and fit her for business.

I. As to the first branch of the instruction. In order properly to appreciate it, it is material to notice the relative position of the two boats at the time of the collision, which is assumed in the instruction, and in respect to which circumstances it was given, and, as claimed by the plaintiffs, the jury would be warranted in finding. For, the principle stated was not laid down as an abstract proposition, or rule of navigation, but one applicable to the state of the case specially referred to as supposed to have been made out upon the evidence.

The case was this: The plaintiffs' boat was in her proper track, descending the river near the middle, while the defendants' was ascending the same in her proper track near the Indiana shore. And as the boats were approaching each other in this relative position, the Paul Jones, the defendants' boat, changed her course across the river towards the middle of the same, somewhat in an oblique direction according to some of the witnesses, and thereby endangering a collision. That as soon as this was discovered, the Major Barbour, the plaintiffs' boat, stopped her engine, rang her bell and floated, as the custom of the navigation required, leaving to the other boat the option to pass either her bow, or stern.

It was upon this state of facts, the court instructed the jury that the plaintiffs' boat was not bound to make the additional manoeuvre of backing her engines, as that might, under the circumstances, have brought about the collision she was endeavoring to avoid; and, that for the injury done by the Paul Jones running into her, the plaintiffs' were entitled to recover.

The counsel for the defendants had requested the court to instruct the jury, that, if the plaintiffs' boat by backing her engines in addition to stopping, and floating, could have avoided the collision, she was bound to do so, and the defendants were not liable, as the master was responsible for the use of all the means in his power to prevent it. And the error, supposed to have been committed, consists in the refusal to give this instruction, under the peculiar circumstances of the case, and in giving that which we have stated.

It is not to be denied, that the Major Barbour, according to the position of the boats as assumed in the instruction, had observed strictly the custom, and usages of the river. But it is claimed, that a state of facts had occurred from the position of the Paul Jones, whether by the fault of those in command or not, that made it the duty of the master of the plaintiffs' boat not sternly to have adhered to this usage, but, to have made the movement insisted upon, if by so doing the accident could have been avoided. This position is founded upon an exception to the general law of the navigation as modified by the circumstances of the particular case, by which the master of the vessel not in fault is bound to make every fair and reasonable effort, in the emergency, within his power, from due exercise of skill and good seamanship, to avoid, if possible, the impending calamity. Upon the water as upon the land, the law recognizes no inflexible rule, the neglect of which by one party, will dispense with the exercise of ordinary care and caution in the other. A man is not at liberty to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not use common and ordinary caution to avoid it. One person being in fault will not dispense with another's using ordinary care for himself.

And, undoubtedly, if a state of facts had been shown in this case, arising out of the circumstances attending the sudden change of the course of the Paul Jones, from which an inference might fairly have been drawn, that it was the duty of the master of the Major Barbour not only to have stopped her engines, but to have reversed them, and backed his boat, in order to avoid the danger, and, that by so doing it might have been avoided, the point should have been put to the jury, with the instruction, if they so found, the plaintiffs could not recover. Before, however, any such instruction could be properly claimed, the defendants must have made out a state ...


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