The Manhasset

Hughes, J. I think the foregoing statement of the facts of this case embodies all that is material to its decision. There is no doubt that the managers of the ferry-boats made good and wise rules for securing the safe transportation of passengers. These rules forbade all persons to leave their boats until the guard-chains before the several gangways were lowered; and rigidly forbade the deck-hands from lowering the chains before the boats were drawn close to the dock and made fast. That part of the evidence reflects the highest credit upon the management. The residue of the evidence, however, is less satisfactory. It shows that men and apprentice boys habitually violated the rules of the ferry. It shows that this class of passengers frequently themselves let down the chains which stretched in front of. the passenger gangways, without waiting for the deck-hands to do so; and that they did this frequently, and when not doing it, habitually got over the chains and leaped off the boats before they were drawn up and made fast to the dock. It shows that this was all done without check or hinderance from the management of the ferries. Now. it it is but little short of mockery to say that rules, the best and wisest conceivable for the safety of human life are made by'common carriers, and at the same time to admit that they allow these rules to be continually and habitually violated. The impatience of passengers to precipitate themselves pell-mell off of ferry-boats is a matter oE constant observation; and the managers of well-regulated ferries else [433] where, In view of this notorious and apparently uncontrollable propensity, acknowledge their obligation to provide against the dangers attending it by adopting contrivances which physically prevent this unreasoning press of passengers for egress, and effectually insure against the dangers incurred. I will not say that the ferry-boats which ply across Norfolk harbor are under legal obligation (as one or two other classes of common carriers are) to provide the latest and most approved contrivances that have been invented, for insuring the safety of their passengers; but I am bound to say that it is their duty to do more than adopt wise, cautionary rules for the purpose,—it Is their duty to take effectual measures for enforcing, from all passengers, a certain and absolute obedience to those rules. The obligations of the carriers of passengers on this subject are laid down by the courts in very stringent terms. Federal courts take the law from the supreme court of the United States; and that tribunal, in a late case, (Penn. Co. v. Roy, 102 U. S. 455, 456,) reviewing previous cases, declared that when carriers undertake to convey persons by the powerful and dangerous agency of steam, public policy requires that they shall be hold to the greatest possible care and diligence; that the personal safety of passengers should not be left to the sport of chance or the negligence of careless agents; that although a carrier does not warrant the safety of passengers at all events, yet his undertaking and liability as to passengers go to the extent that he or his agents shall possess competent skill, and, as far as human care and foresight can go, he will transport them safely; and that he is responsible for all injuries received by passengers, which might have been avoided by the exercise on his part of extraordinary vigilance, aided by the highest skill. These propositions may be regarded as the settled and accepted law of the subject in this country, and they are the law of this case. The obligations of the authorities who controlled the Manhasset are determined by them, and they show that there waiS fault on the part of this ferry-boat; and therefore, if the accident which happened to Black, a grown and sane man, had happened to a child or other person unpossessed of ordinary discretion, the liability of the Manhasset would have been indisputable. But Black -was a man of responsible age and discretion; and the law, tender as it is of the safety of passengers on steam vehicles, yet lays down the counter-principle that every man is bound, no matter in what he may be engaged, to use ordinary care for his own protection, and no man is bound to use more; so that if a man of discretion is negligent in taking care of himself, and contributes by that negligence to bring upon himself the accident by which he- suffers, he, in general, relieves the carrier from the obligation of compensating him in damages. The application of these counter doctrines of the rigid responsibility of carriers to passengers, and of the contributory negligence of the person injured, is one of the most difficult tasks that devolve upon [434] courts, and is especially difficult in the present case. The question here is, whether Black, by stepping over the guard-chains of the ferry-boat and then attempting to leap from the boat to the float before she was made fast, “contributed” to the accident to such a degree as, under all the circumstances of the occasion, to 'exonerate the boat from responsibility. That the boat was in fault has already been stated; that Black was more or less reckless in his conduct is equally true; and the question of law is whether his conduct was of such a character as to relieve the boat of responsibility for the accident in damages. Now, if Black had not been a customary passenger on that ferry, or if, of those who habitually made that passage, he was the only person, or one of a few persons, who took the hazard of passing the chains and leaping the chasm before the boat was made fast, then the case would be free from much of its difficulty. It would resemble in principle the case of Railroad Co. v. Jones, 95 U. S. 439. But Black had passed -the ferry often enough to know what its authorities habitually allowed in respect to this matter. He was familiar with the fact that passengers habitually overstepped the chains and strided the chasm without hinderance or rebuke from them. The managers thus gave out to the public, as if it was their opinion, that the practice was practically safe and unattended with danger. Printed rules there may have been; chains were in fact stretched formally before the eyes of passengers; but passengers were seen and notoriously known to disregard them by the half dozen or dozen on every trip. The question, therefore, resolves itself into this: was Black not thrown off his guard? Was it not held out to him habitually by the managers, that, practically, there was no danger ? Was anything presented to arrest his attention and to warn him of the fate which overtook him ? I think the evidence in the case leaves room for but one answer to this, the crucial question of this ease. The case turns upon this question, because it is a principle of the law of contributory negligence that a carrier is not necessarily excused because the injured person knew that some danger existed through the carrier’s neglect, and voluntarily incurred the danger. Clayards v. Dethick, 12 Q. B. 439. Where, for instance, a traveler crossed a bridge which he knew to be somewhat unsafe, but which its managers had not closed, nor warned the people not to pass, and the traveler’s horse fell through and was killed, it was held that he was not in fault, and damages were recovered. Humphreys v. Armstrong Co. 56 Pa. St. 204. So it was held that the plaintiff might recover where a passenger train was moving very slowly by, but did not stop at a depot where it should have stopped, and a passenger was injured by leaping off, notwithstanding the usual warning that passengers must not get'off the train while in motion, the slow gait of the train seeming to invite the passenger to get off. Filer v. N. Y. Cent. R. Co. 49 N. Y. 47. These cases sufficiently illustrate the principle of the law of contributory negligence, that though the [435] passenger must do what a prudent person should do to avoid accident in any particular circumstance, in which he may stand, yet if he has reason to infer from the conduct and policy of tho carrier that no practical danger would attend an act, though there might be some risk, and if he is thereby thrown off his guard respecting it, the carrier is liable. I do not feel called upon to review the myriad of eases on this subject which All the reports of tho courts, or to dwell upon the confusing- and confounding niceties of distinction which are drawn by the text-writers in digesting these eases. Suffice it to say that I am of opinion, though it has been arrived at with diffidence and some doubt, that the Manhasset is liable in this action. I will now allude to a question of jurisdiction which was raised at bar, to the effect that the tort in this case was not maritime, and not within tho cognizance of admiralty; inasmuch as Black, when he fell upon the float, just as he received the injury to his foot, was, as a matter of fact, on land, and not on the boat; it being certain that if he had already got upon the float, and was standing upon it, tho tort would not have been maritime. See The Plymouth, 3 Wall. 20, and The Mary Stewart, 5 Hughes, 312.1 This view of tho case is defeated by the consideration that the lort was inflicted by the boat while Black was in the act of leaving her, and before he had completed the act of landing. But even if this were not so, it is only with respect to torts that maritime locality is essential to the admiralty jurisdiction. In respect to contracts the rule does not hold; if tho contract is maritine in its character, the locality where it is made is immaterial. In this case there was not only the tort of inflicting an injury resulting in death, but a contract to carry the passenger and to land him safely at Norfolk. The damages he received will be of the double character of a satisfaction for the breach of contract, and for the tort. But 1 insist that it was the boat which inflicted the injury, and that the injury was inflicted upon a part of the body of the deceased man which had not yet landed, and which was injured by reason of its being still on the water. I know that this distinction would seem ovor-nicely drawn, but questions of law very often depend upon nice distinctions, and when they do it is necessary to draw them. Assuming, on tho whole case, that the libelant is entitled to recover damages, the final question is what these should be. The amount depends upon the question, how much of his earnings could the deceased have bestowed upon the libelants as their sustenance if he had lived? He owned a farm; and that, of course, is still left to them. Beyond this the evidence gives us but little to build an estimate upon. His precarious employment and wages at the navy-yard afford no certain basis for a calculation. Driven to conjecture, my [436] estimate must be very moderate; the more moderate, as this man had entered the period of old age, and could not, in the course of nature, be supposed to have continued long to spare from his own support a surplus for the sustenance of those dependent on him. • It is the custom and the duty of the young to support the aged when they have entered, the period of old age. At the age of 64 the tables of vitality show that Black’s expectation of life was seven years and a half. If we assume that he could during this period of old age have spared an average of $75 a year to the use of the libelants, then we should arrive at an award of $562.50 as the damages to be allowed in this case. I will give a decree for that amount, and for the costs of this suit. Footnotes [1] S. C. 10 Fed. Rep. 137.