Morrissey v. Wiggins Ferry Co.

Wagner, Judge, delivered the opinion of the court. This action was brought under the second section of chapter 147 of the General Statutes, and damages claimed to .the amount of ¡$5,000, by the plaintiff, as the only surviving parent of Annie Morrissey, who, it is alleged, was a minor and unmarried, and was drowned while crossing the Mississippi river on one of defendant’s ferry-boats, in consequence of the negligence, unskillfulness, or criminal intent of defendant’s agents and employees in'managing said boat. On the trial in the court below, under certain instructions, the jury found a verdict for the defendant. There was much evidence given, and it was conflicting in its character, but I shall neither detail nor comment on it, as it belongs exclusively to the jury to attach to it whatever -weight and consideration they maydeem it deserves. The whole defense was based upon the ground of contributory negligence: that the deceased, through her imprudence and want of care, produced or contributed to the accident in such a manner as ought to preclude a recovery. That there is a difference in the adjudications upon this subject, and that some courts have held that no recovery can be had where the injured party is in the least in fault, cannot' be disputed. Rut such is not the ruling of this [383] court; and it is to be observed that the courts which have heretofore laid down the above doctrine are rapidly retracing their steps and declaring a rule more reasonable and in consonance with justice. The question has been discussed in several recent cases in this court, and the law must be considered as established — no longer in doubt or open to question. The settled principle now is that it ought to be left to the jury to say whether, notwithstanding the imprudence of the injured person, the defendant could not, in the exercise of reasonable diligence, have prevented the catastrophe. The degree of responsibility to which carriers of passengers are subjected is not ordinary care merely, which will make them liable only for ordinary neglect,, but extraordinary care, which renders them liable for slight neglect. In a recent case in this court, in discussing the liability of passenger carriers, we declared the rule to be “ that the carrier shall be guilty of some negligence which mediately or immediately pro-lf duced or enhanced the injury, and that passeng-ers should not have | been guilty of any carelessness and imprudence which directly Contributed to the injury, since no one can recover for an injury of which his own negligence was, in whole or in part, the proximate cause; and that, although the plaintiff’s misconduct may j have contributed remotely to the injury, if the defendant’s misconduct was the immediate cause of it, and with the exercise of prudence he might have prevented it, he is not excused.” (Huelsenkamp v. Citizens’Railw. Co., 37 Mo. 537; Kennedy v. N. M. R.R. Co., 36 Mo. 351; Boland et ux. v. Mo. R.R. Co., 36 Mo. 484; Meyer v. Pacific R.R. Co., 40 Mo. 153 ; Liddy v. St. Louis R.R. Co., 40 Mo. 506.) The concluding paragraph of defendant’s second instruction is objectionable. It tells the jury that unless they believe that the accident and death resulted without any negligence or want of care on the part of Annie, which produced or contributed to produce such accident and death, then they should find for defendant. This was in direct conflict with the law as above declared. It destroyed the plaintiff’s right of action for the least fault upon the part of deceased, and exonerated the defendant, although the [384] unskillfulness, negligence, and criminal intent of its agents and employees may have directly caused the injury. Such is not the law, and we hope it never will be. The plaintiff asked two instructions which were refused. They are as follows: “That if the jury find from the evidence that the employees of defendant or either of them were guilty of negligence in not keeping the entrance to defendant’s boat properly guarded or protected, or in not keeping sufficient lights on said boat or on the wharf-boat, by reason of which deceased came to her death, and that deceased was not guilty of any want of ordinary care and prudence which directly contributed to the injury, then the defendant is liable in this suit.” •‘ That although the deceased may have been guilty of misconduct or failed to exercise ordinary care and prudence while passenger on defendant’s boat, which may have contributed remotely to the death of deceased, yet if the employees or either of them of defendant were guilty of negligence which was the immediate cause of the death, and with the exercise of prudence by said employees or either of them said injury and death might have been prevented, the defendant is liable in this suit.” The instructions asserted correct propositions of law, and should have been given. They tell the jury that if the deceased only remotely contributed to the accident, and if the agents and employees of the defendant were the direct and immediate cause, and might have prevented it by the exercise of prudence and care, the defendant is liable. Nothing can be clearer. There was some question made about the action of the court in admitting and rejecting testimony, but I have seen nothing objectionable in the ruling of the court in that regard, except in portions of the deposition of Barron. And although his statements were so absurd, and so flatly contradictory to the whole mass of the testimony given on each side, that I have no idea that either the jury or anybody else believed them, still they were incompetent, and should have been excluded. With the concurrence of the other judges, the judgment will be reversed and the cause remanded.