Anderson v. Cape Fear Steamboat Co.

Beade, J. The facts .being ascertained, negligence is a question for the court. When the testimony is all on one side, or is not contradictory, the Court can decide whether there is, or is not, negligence. When the testimony is on both sides and contradictory, the Court must submit the testimony to the jury to find the facts and apply the law, as the Court shall explain it, as to what constitutes negligence in the particular case. Here there were six witnesses for tire plaintiffs, and seven for the defendant, and their statements were conflicting. The defendant selected the testimony of one of his witnesses, and asked his Honor to charge the jury, that “if they believed the testimony of Captain Hurt, there was no negligence.” The testimony of this witness was by no means the most consistent and satisfactory., and was expressly contradicted by others. Such a charge under the circumstances would have been calculated to mislead the jury, and induce them to believe that the case depended upon the truthfulness of the witness, and that a verdict against it would be an imputation of perjury. This would be a trial of the witness rather than of the case; whereas both the witness and his testimony might be in the main truthful, and yet so explained or modified by the other testimony as to authorize a verdict against it. If his Honor had passed upon the testimony to ascertain the facts, he would have considered the whole, and he could not do less than submit the whole to the jury, when he substituted them to find the facts for him. His Honor did charge the *407 jury that if they believed, the most important part of Oapt. Hurt’s testimony, i. e. “ that the steamboat was one hundred and fifty yards from the barn, and that the sparks did not fly more than twenty or thirty yards from the boat,” then there was no negligence. This is self-evident, and the defendant had the benefit of it. Take out this portion of his testimony, and there is nothing left which shows ordinary care on the part of the boat: on the contrary it makes out a clear case of negligence, upon the supposition that the barn was burned by the boat, as was clearly testified to by the other witnesses; for Oapt. Hurt states that he had no u spark-arrester ” on at the time, and that there was a strong wind. The testimony in detail is sent up with the case, and taken as a whole, the jury were well authorized to .find that as the boat went up the river there was a strong wind which blew the sparks from the steamboat upon the barn, and burned it down, that there was no “ spark-.arrester” used, and that there are spark-arresters in general use on steamboats and railroads, which are effectual for the purpose, that the boat had a “ spark-extinguisher” which was sometimes used and was effectual when used, and could be put off and on at pleasure, and it was not used on this ■occasion. These facts make a clear case of negligence. The reason given for not using the spark-arrester constantly on this boat was, that it choked the smoke-stack and impeded the speed of the boat.' If that be true, still it is an inconvenience which must be submitted to in favor of life and property; and it is an inconvenience to which other boats and railroads submit. If it were not so, then, as stated by one of the witnesses, the country would be burned up. It was stated by Oapt. Hurt that as a substitute for the spark-arrester, he used a higher smoke-stack than common, which he found to be the “ best means for preventing the emission of sparks.” If it was the “ best means,” then it *408 was not negligence to use it instead of a spark-arrester. But this seems inconsistent with other parts of his testimony in which he states that be had upon the boat a “ spark-extinguisher,” which he always used when going into Wilmington, and sometimes when passing buildings on the river. Why use it at all, if the high smoke-stack was better ? Why was-it better to use it when going into Wilmington and passing other houses on the river,' and not better to use it when passing this barn ? This uncertainty, not to say inconsistency, in the testimony of Capt. Hurt, shows clearly that his Honor could not have put the case to the jury upon it, as he was asked by the defendant to do. It seems to be uncertain, even in his own opinion, whether the high smoke-stack or the spark-extinguisher was the best means; and the fact that he used the latter in places of greatest danger, would justify the inference that he thought the spark-extinguisher the best means. If so, there was a special reason why he should have used it on this occasion; because he was passing a barn of great value, full, probably, of combustible material, and there was a strong wind. In determining the question of negligence on any given occasion, the circumstances must be taken into consideration. What would be ordinary care in one case, would be negligence in another. Where the danger is increased, the safe-guards must be increased; just as a bailee must take better care of a purse of gold than of an umbrella. Exception was taken to his Honor’s charge, that if there was any appliance known to steamboat men that would arrest the sparks, the defendant was bound to use it.” If this be construed to mean that the defendant must use all or the very best appliances, the charge would be objectional; but such a construction would be u sticking in the bark.” The plain meaning is, that the defendant was bound to use some efficient means to arrest the sparks, and thus understood, the charge is right. *409 The exception to his Honor’s comments on the case of Herring v. W. and W. R. R., are without force, as it seems, to us. No error is specified. If there was any error in the instructions of the Court, the finding of the jury seems to us, in view of all the evidence, to he right, and that cures the alleged error. There is no error. Per Curiam. Judgment affirmed.