Fletcher v. Wilmington Steamboat Co.

Opinion by Mr. Chief Justice Brown, On the morning of August 27, 1916, the appellee was a passenger on a steamboat belonging to the defendant company, which started from Philadelphia for Wilmington, Delaware. Shortly after it left the wharf, when it reached a point in the Delaware river at or near Mifflin street, it collided with a ferryboat which was neither owned nor operated by the defendant. At the time of the collision the appellee was sitting on a camp stool on one of the decks of the boat. The collision threw her over or across the chair or stool on which she was sitting,, and this action was brought for the recovery of damages for the injuries she sustained. From' the judgment on the verdict in her favor the defendant has appealed. The question of the defendant’s negligence as the causé of the collision was submitted to the jury in a charge of which no complaint is made in any of the assignments of error. The defendant offered no testimony. At the-close of plaintiff’s case it asked that a verdict be directed •in its favor, on the ground that nothing disclosed in the evidence submitted by the plaintiff showed negligence on its part. The refusal of this request and the overruling of the motion for judgment non obstante veredicto constitute one of the two complaints of the appellant. In support of this complaint it is urged that .the rules for the government of the movement of vessels when approaching each other, which were offered in evidence by the plaintiff, were being strictly observed by the defend ant at the time of the collision, and it was not, therefore, guilty of negligence in colliding with the ferryboat. This overlooks the testimony of the captain of that boat, and it was upon his testimony that the case went to the jury. He testified as to the movements of his boat coming up the Delaware from Gloucester, and stated that, when he reached a point opposite Mifflin street, he éntered a bank of fog; that he ran his boat at about four [4] miles an hour, blowing Ms fog horn; that he heárd the fog horn of a boat coming towards him in the fog; that he was running close to the Pennsylvania shore, because of some obstructions in the river which he wished to avoid; that after he had got into the fog he saw ahead of him, and coming in his immediate direction, the steamboat of the defendant, between four and five hundred feet up the river from him; that he immediately blew two whistles, which meant that the steamboat was to pass him on the left side. According to his testimony, the rule of the river as to the passing of one boat by another is the same as the rule of the road, and ordinarily boats keep to the right in passing. There is, however, an exception to this, according to Rule 1, Article XVIII, of the pilot rules. That rule, after stating the general regulation, requiring each passing boat to keep to the right, provides: “But if the courses of such vessels are so far on the starboard of each other as not to be considered as meeting head and head, either vessel shall immediately give two short and distinct blasts of her whistle, which the other vessel shall answer promptly by two similar blasts of her whistle, and they shall pass on the starboard side of each other. The foregoing only applies to cases where vessels are meeting end on or nearly end on, in such a manner as to involve risk of collision.” The captain of the ferryboat further testified that his boat was in the position covered by this rule; that he gave the signals provided for by it; that he received no answer; that he then stopped his engines and gave the danger signal and started his boat backward, and that there was sufficient navigable water on the right side of his boat for the steamboat to pass him. Instead of passing him on the right or starboard side, as the signal from the ferryboat indicated to it that it should, it did not vary its course, and struck the ferryboat on the port side with great force. Unusual caution is required of those in charge of vessels passing through a fog: The “Bailey Gatzert,” 170 [5] Fed. Repr. 101; The “Virginia,” 203 Fed. Repr. 351; and in view of the testimony of the captain of the ferryboat, the question of the negligence of those in charge of the steamboat could not have been taken from the jury. It was submitted to them under the following correct instruction: “Did he (the captain of the ferryboat) give these signals as he testifies, and did the ‘City of Chester’ negligently, under its high measure of duty to its passengers, fail to observe them, thereby violating the rule of navigation, and as a consequence by its negligence bring about the collision? The first point submitted by counsel for the defendant states the defendant’s position here so accurately as to the law that I will incorporate it in my general charge, and instruct you at this point that if you believe that the steamer ‘City of Chester’ was proceeding down the Delaware river on the twenty-seventh day of August, 1916, upon her proper course and in a proper manner; that she was in charge of competent and skillful navigators, and was being-operated and navigated in a careful, competent and skillful manner, and that without fault on her part or those in charge of her she was run into by another boat over which neither the defendant nor its employees had any control, then the defendant was not responsible for any injury resulting to the plaintiff, and your verdict must be for the defendant. That is correct, gentlemen of the jury, and I so instruct you. If, however, the employees of the defendant company were at all negligent, if they failed to recognize the signals of the captain of the ‘Dauntless,’ if you believe that he actually did give them; if by the exercise of the high degree of care imposed upon them as common carriers they could have stopped the ‘City of Chester’ or have done anything else to have avoided the collision, then it was their duty to have done so, and if they failed in that duty, then they were negligent, and their negligence would impose liability upon the defendant company for any injuries suffered by the [6] plaintiff as a result of their negligence.” The sixth and seventh assignments of error are dismissed. The first, second, third, fourth and fifth assignments complain of the court’s admission of evidence of the present value of 'money for different periods of expectancy based upon total disability. It appeared from the testimonythat, before the plaintiff Avas injured, she had an earning capacity of from $6 to $7 per Aveek, and-if there Avas evidence from Avhich the jury could fairly find that she Avas totally disabled by the injuries she sustained, the first five assignments of error are without merit. The jury could fairly have found from the testimony of the plaintiff herself, and from that of tAvo of the three physicians called, that her injuries Avere permanent, totally depriving her of earning capacity. From the amount of the verdict returned, in vieAV of the expectancy of the plaintiff’s life, the jury manifestly did not find that she Avas totally disabled. In submitting the question of her total disability to them, the learned trial judge correctly charged as follows: “If, however, you do not believe that she is totally incapacitated for work, but find as a fact, as her one physician tells you, that she is now able to do light work, then you will consider compensation to her, instead of contemplating total loss of earning poAver, simply a diminution or lessening <rf earning power.” The first five assignments of error are also- dismissed, and the judgment is affirmed.