Rogers v. McCune

Scott, Judge, delivered the opinion of the court. This being a case in which there is a verdict, our task is limited to the examination of the instructions given and refused,- and to the points of evidence raised on the trial. Although the rules by which we are governed restrain us from inquiring into [567] the correctness of the verdict on the mere facts, yet we.,cannot suppress the opinion that there is ample evidence in the record to sustain the finding of the jury. Upon the whole case, the custom in regard to signals by bells was made, by the instructions given for the defence, to assume a greater importance than it merited. Although there was evidence which warranted the hypothesis contained in the defendant’s instructions, in relation to the custom of giving signals by bells, yet the weight of the testimony, if credited by the jury, was sufficient to show that the custom had no great deal to do with the case. The rules, as adopted by the association of pilots of the Upper Mississippi, where this collision occurred, and as explained, tend to support this view. 1. The chief objection to the action of the court below is, the refusal of the instruction numbered 7-J, asked by the defendant. The purport of that instruction was that, if the jury find, at the time of collision, the giving of signals by bells was an ordinary and proper precaution to avoid collision, and the Archer attempted to pass the Die Vernon without employing such a measure, after having received the proper signals from the Die Vernon, she running according to the signals she had given, and otherwise conducting herself -with due care, then tho burden of proof is on the plaintiff, to show that the collision was not caused by her neglect, and that such omission in no wise contributed to it. The defendant, in his brief, remarks upon this instruction, “ that the court was here asked to say, without reference to custom, that if the Archer did neglect to observe an ordinary and proper means of safety, that would constitute a prima facie case of neglect at least.” If the instruction, numbered 7-J-, had, as was supposed, merely asked a declaration from the court, that the giving of signals by bells was a proper precautionary measure to avoid collisions, whatever might have been said of it in other respects, it would have avoided the objection that it submitted a [568] question of law to tbe jury. Tbe instruction is not as it was conceived to be. It does not refer to the court the question, whether the giving of signals by bells was a proper measure of precaution to avoid collisions, but it is asked to be put to the jury ; and in this consists the error of this instruction. What is a proper precautionary measure in itself, uninfluenced by rule, usage, or custom, to avoid collisions, is a question of law. Chancellor Kent says : “ There are settled nautical rules by which, in most cases, the want of skill or care or duty may be ascertained.” B, 280. But, as a matter of law, the instruction was wrong. For no signals by bells could be an ordinary and proper measure of precaution for avoiding steamboat collisions, without regard to usage or custom. Such a thing would be impossible. How could a court tell a jury that there should be one, two or four taps of a bell given by this or that boat, without there was a usage? How could it say what one, two or four taps indicated, unless the thing had been previously regulated by rule or custom. Indeed, if the instruction contemplated that signals by bells was an ordinary and proper precaution for avoiding collisions, without regard to the rule or custom, it had no foundation in the facts of the case. As a means of avoiding collisions, signals by bells were never used until 1847, after the adoption of rules by the association of pilots of the Upper Mississippi, by which they were introduced. 2. There was no error in refusing the 8th instruction asked by the defendant, to the purport that if the custom of the river of giving signals by bells was the measure used for preventing collisions, and the Die Yernon, in proper time and manner and in good faith, gave signals to the Archer that she would pass to the larboard, and otherwise conducted herself with ordinary care and diligence, and the Archer neglected to respond by signal, and the custom in such case implied that the Archer assented to the signal of the Die Yernon, the Die Yernon was justified in running according to her signal^ so long as she saw [569] no danger, even though the Archer was unable to respond. There is no evidence in the record which warrants the assump - tion that the ascending boat assents to the signal of the descending boat, if she does not respond to it. The strongest expression by any witness, in relation to this matter, is, “the duty of the ascending boat is, to give the descending boat the upper bar, if she signals for it, unless the ascending boat signals otherwise.” The principle of this instruction moreover, was embodied in a previous one, which had been given for the defendant. The same proposition ought not to be repeated in several instructions, as it serves to give it an undue weight with the jury. As instructions numbered 11 and 13 had been given for the defendant, there was no error in refusing that numbered 9. Instructions numbered 14 and 15 had been previously given, in substance. The instruction given for the plaintiff, numbered 8, standing alone, would have been open to objections., but when considered along with those given for the defendant, it cannot be regarded as erroneous, especially as the jury was directed to take all the instructions together, as forming the law of the case. 3. There was no error in excluding the declarations of the captain of the Archer as to the cause of the collision. He was no party to the suit, nor owner of the boat. His declarations could not be regarded as a part of -the res gestee. They wrere not made -until after the transaction was past. The admission or declaration of his agent binds the principal only when it is made during the continuance of the agency, in regard to a transaction then depending. It is admissible, because it is a verbal act and part of the res gestee. What the captain said after the collision had taken place, was a recital of the cause of it, and was no part of the transaction whilst it was passing. 4. This court will not revérse a judgment because a leading question has been put to a witness during the trial of the cause. What is a leading question is a matter depending so much upon circumstances, that no rule can be framed on such a subject. [570] We all know men who may be safely examined as witnesses by leading questions. If a judgment was reversed for suck a cause, would not a willing witness be sufficiently instructed at a future trial to serve the party who brought him. The witness, Meline, was examined as to the value of the steamboat Archer. Surely there was nothing in his deposition that could prejudice the defendant with an intelligent jury. They would only give it such weight as it was entitled to, from the manner in which he spoke. .If it was open to comment, it might have been made to the jury. There was other evidence on this point. The other judges concurring, the judgment is affirmed.