In an action by a wharflinger against a steamboat company for
crashing his foot between the timbers of a wharf by the violent
striking of a steamboat against the wharf while touching there to
receive freight from him in calm weather, there was conflicting
testimony from the plaintiff and from those on board the steamboat
as to the negligence of either party, including evidence that the
plaintiff immediately after the injury, and again the next morning,
admitted that he was hurt by his own fault.
Held that the
defendant had no ground of exception to the following
instructions
(1) That the shock and pain might render the plaintiff incapable
of telling exactly how the thing took place, and that his making
different statements at different times did not necessarily imply
an intention to mislead, and therefore the jury might look at any
difference in his statements in that point of view.
(2) That it would be
prima facie evidence of the
defendant's negligence if the steamboat was thrown with such force
against a wharf properly built as to tear up some of the planks, or
if it was dangerous to make a stern landing, with neither captain
nor pilot in the pilot house and under the other circumstances
proved.
(3) That any negligence of the plaintiff directly contributing
to the injury would incapacitate him from recovering, and that if
he negligently placed his foot between timbers of the wharf and
allowed it to remain there while the steamboat was departing, and
it was injured while so placed, it was for the jury to decide
whether there was such negligence as would dissentitle him from
recovering.
(4) That the burden of proof was on the defendant to show that
the plaintiff was negligent and that his negligence contributed to
the injury.
(5) That contributory negligence of the plaintiff would not
prevent him from recovering if the defendant might, by the exercise
of reasonable care and prudence, have avoided the consequences of
the plaintiff's negligence.
Whether a particular position on a wharf is a safe place for the
wharflinger to stand while a steamboat is approaching to take off
freight or to make a landing is a question for the jury, and not
for opinions of witnesses.
The case is stated in the opinion.
Page 139 U. S. 552
MR. JUSTICE GRAY delivered the opinion of the Court.
This was an action brought March 11, 1884, by Tolson against the
Inland & Seaboard Coasting Company to recover damages for the
crushing of his foot by the negligent management of a steamboat of
the defendant. The plaintiff recovered a verdict for $8,000,
judgment on which was affirmed in general term. 6 Mackey 39. The
defendant sued out this writ of error.
At the trial, it appeared that the plaintiff was the owner and
wharfinger of a wharf in the Potomac River known as "Shamrock
Pier," built on piles, in a suitable and substantial manner, early
in 1883, and the front of which, twelve feet long, was parallel
with the channel of the river, and had three heavy fender piles at
each corner; that on September 15, 1883, the plaintiff, having a
small basket of pears and an empty demijohn to put on board the
defendant's steamboat for Washington, neglected to signal her as
she came up the river, and hailed her as she was passing the wharf,
whereupon she backed in to make a stern landing, and struck the
piles at the lower end of the wharf with considerable force; that
at that time, the weather was calm and the tide just turned flood,
and neither the captain nor the pilot was in the pilot house. The
plaintiff testified that while he was standing near the edge of the
wharf by the capstan post ready to catch a line to be thrown from
the steamboat, she struck the wharf with such force as to start and
break the plank flooring, and to catch and crush his left foot
between the planks and that post, and that at that moment the mate
of the steamboat reached over and took the basket from his hand.
The defendant called as witnesses the pilot and others on
Page 139 U. S. 553
board the steamboat, who testified that the plaintiff, as the
steamboat neared the wharf, called out that there was no need to
throw a line, and leaned over and handed the basket and demijohn to
the mate, and the mate gave the signal to go ahead, and he and the
plaintiff shook hands and joked together, and the boat then struck
the wharf, and jammed the plaintiff's foot between the wharf and
one of the fender piles; that the boat was then turned about, and
made a bow landing at the wharf for the purpose of rendering the
plaintiff assistance, and the plaintiff was taken ashore, and then
and there, in the presence of the mate and others, said "that he
was hurt by his own fault, that he was standing in a dangerous
position." The defendant also introduced evidence that the
plaintiff, the next morning at his own house, explained to two of
his neighbors how the accident happened, and said to them "that it
was his own fault, and nobody else's, that he did not blame any of
the boat people," and stated the circumstances of the accident in
the same way as the defendant's witnesses.
Upon the comparative weight to be given to the statements made
by the plaintiff shortly after the injury and to his testimony at
the trial, the judge instructed the jury as follows:
"It may at first seem surprising that a man who himself wears
the shoe should not be able to tell where it pinches; that a man
who has his foot crushed should not necessarily know better than
any other party where it was hurt, and how it was hurt, and yet it
is not an uncommon thing for other men who saw the thing done to be
able to tell better than the man himself how the accident happened.
The shock and pain may have the effect of rendering the man quite
incapable of telling just exactly how the thing took place, so if
you find the man at different times making somewhat different
statements it does not at all follow that it was his intention to
mislead. You are therefore to look at any difference of statements
that he may have made, if you believe he did make different
statements, in that point of view. He may not be the best witness
as to what did happen to himself or the manner in which the thing
may have happened. "
Page 139 U. S. 554
The defendant excepted to this instruction and contended that it
invaded the province of the jury to determine the credit to be
given to the plaintiff's various and contradictory statements by
directing them to look at the evidence in a particular point of
view and by treating the shock and pain of the injury as affecting
not only his statements made the same evening, but also those made
to his neighbors the next morning.
But the instruction, fairly construed, after calling the
attention of the jury to two distinct considerations -- the one,
the effect of the shock and pain, "which could not have been
understood to apply to statements made after the shock and pain had
subsided," and the other that the making of different statements at
different times did not necessarily imply an intention to mislead
-- suggested to the jury to look at any difference in the
plaintiff's statements in that point of view. This was clearly
within the judge's authority and discretion in aiding the jury to
perform their duty.
The court gave the following instruction:
"If the jury believe from the evidence that the wharf in
question was an ordinarily strong and good one, and suitable for
the purpose for which it was constructed, and that in making the
landing in question, the boat was thrown against the wharf with
such force as to tear up some of the planks or boards of the
flooring, this would be
prima facie evidence of negligence
on the part of the agents of defendant under the circumstances in
making such landing, and would justify the jury in so finding
unless, upon the whole evidence, such
prima facie evidence
is rebutted."
The defendant excepted to this instruction.
The court did not, in this or any other instruction, tell the
jury that the burden of proof on the issue of the defendant's
negligence was shifted upon the defendant. On the contrary, the
jury were afterwards expressly instructed:
"The plaintiff's whole ground of recovery is that the defendant
was guilty of negligence. The burden of proof is on the plaintiff
to sustain this allegation."
The whole effect of the instruction in question, as applied to
the case before the jury, was that if the steamboat, on a calm day
and in smooth water, was thrown
Page 139 U. S. 555
with such force against a wharf properly built as to tear up
some of the planks of the flooring, this would be
prima
facie evidence of negligence on the part of the defendant's
agents in making the landing, unless upon the whole evidence in the
case this
prima facie evidence was rebutted. As such
damage to a wharf is not ordinarily done by a steamboat under
control of her officers and carefully managed by them, evidence
that such damage was done in this case was
prima facie,
and, if unexplained, sufficient evidence of negligence on their
part, and the jury might properly be so instructed.
Stokes v.
Saltonstall, 13 Pet. 181;
Transportation Co. v.
Downer, 11 Wall. 129,
78 U. S. 134;
Railroad Co. v.
Pollard, 22 Wall. 341;
Le Barron v. East Boston
Ferry, 11 Allen 312, 317;
Feital v. Middlesex
Railroad, 109 Mass. 398;
Rose v. Stephens & Condit
Co., 11 F. 438.
In the same connection, the jury were instructed as follows:
"In determining whether the defendant's agents were guilty of
negligence in making the landing in question, it would be proper
for the jury to consider with the other facts and circumstances
shown in evidence whether, under all the circumstances, it was
dangerous to make a rear landing with that boat at that time at the
wharf in question, and whether either the pilot or captain should
not have been in the pilot house during the making of said landing,
and if they find from all the evidence that it was dangerous to
make such landing under such circumstances, this will be
prima
facie evidence of negligence on the part of defendant to
justify them in so finding, unless such evidence is rebutted by the
whole evidence in the cause."
The exception to this instruction is equally unfounded. There
can be no doubt that approaching a wharf with a steamboat in such a
manner, and with such want of supervision, as to be dangerous is of
itself evidence of negligence on the part of those in charge of
her.
The court at the defendant's own request, gave the following
instructions to the jury:
"If the jury find from the whole evidence that the injuries
described in the plaintiff's declaration were caused by the
negligence
Page 139 U. S. 556
or carelessness of plaintiff, the plaintiff is not entitled to
recover in this action although they shall further find that in
landing at or departing from the pier called 'Shamrock' at the time
described in the declaration the defendant's boat was not managed
by the defendant's servants with skill and care. . . . If from the
whole evidence the jury are unable to determine whether the
injuries complained of in the plaintiff's declaration were caused
by the negligence of plaintiff or by the negligence of defendant's
servants, the verdict of the jury must be for the defendant."
The court also instructed the jury as follows:
"If you find the defendant was not guilty of negligence, that
ends the case. If you find that the defendant was guilty of
negligence, then a second point of inquiry arises -- whether the
plaintiff was also guilty of negligence, and whether his negligence
contributed to the injury. If you find that the plaintiff was
guilty of negligence and that such negligence directly contributed
to the injury, then it is not important to inquire how far such
negligence contributed to it, for if he contributed to it at all,
that would incapacitate the plaintiff from recovering."
The defendant requested the court to give this instruction:
"If the jury shall find from the whole evidence that at the time
the defendant's boat was landing at the pier Shamrock, the
plaintiff negligently or carelessly placed his left foot between
the piles of said pier, or between the piles and the flooring of
said pier, or between one of the piles in front of said pier and
the flooring thereof, and allowed it to remain there while the boat
was departing from said pier, and the foot so placed was injured
while in that position, then the plaintiff is not entitled to
recover in this action."
The defendant also requested the court to give the same
instruction modified by omitting the words "negligently or
carelessly."
The court declined to do so, and gave the instruction with those
words and added:
"This is upon the hypothesis that you shall first find the facts
spoken of, and then that the plaintiff negligently or carelessly
placed his foot in the position referred to. It, however,
still
leaves with you the question,
Page 139 U. S. 557
if you should find he did place his foot in such position,
whether or not his act in doing that was such negligence as would
dissentitle him from recovering. There is a principle which
you will bear in mind in regard to that. It is this: that a person
in the position of the plaintiff is to keep his wits about him, to
be on the alert so as not to be injured, and to exercise such
vigilance or care as is proportionate to the hazard of the duty in
which he is engaged. For instance, a man should be more cautions if
he is running a dangerous engine than if he is sitting, as you are
now, in a position of safety, and attending to his usual vocation.
His care must be in proportion to the hazard of his engagement.
There is no proof here to show that this was a dangerous
vocation -- standing there attending to that wharf -- and yet,
nevertheless, there were certain hazards accompanying it, just as
there are in almost all positions."
To the refusal to give the modified instructions requested, and
to so much of the instructions as is above printed in italics, the
defendant excepted. The court rightly refused to omit the words
"negligently or carelessly," as requested, because to do so would
be to assume that the plaintiff's placing his foot between timbers
of the wharf and keeping it there while the steamboat was leaving
was necessarily negligence as matter of law. The court truly said
there was no proof in the case that "standing there, attending to
that wharf, was a dangerous vocation," and properly submitted to
the jury upon the whole evidence the question whether the plaintiff
exercised due care at the time and place of the injury, and under
the circumstances attending it. The phrase "such negligence as
would dissentitle him from recovering" was evidently used as
synonymous with "such negligence as contributed to the injury."
Only two other instructions given by the judge and excepted to
by the defendant require to be particularly noticed.
The one: "The burden of proof is, however, upon the defendant to
show that the plaintiff was negligent, and that his negligence
contributed to the injury," was in accord with the uniform course
of decision in this Court.
Railroad Co.
v.
Page 139 U. S. 558
Gladmon, 15 Wall. 401;
Indianapolis & St. Louis
Railroad v. Horst, 93 U. S. 291;
Hough v. Railway Co., 100 U. S. 213;
Northern Pacific Railroad v. Mares, 123 U.
S. 710,
123 U. S.
720-721.
The other instruction was in these words:
"There is another qualification of this rule of negligence which
it is proper I should mention. Although the rule is that even if
the defendant be shown to have been guilty of negligence, the
plaintiff cannot recover if he himself be shown to have been guilty
of contributory negligence which may have had something to do in
causing the accident, yet the contributory negligence on his part
would not exonerate the defendant and dissentitle the plaintiff
from recovering if it be shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the
consequences of the plaintiff's negligence."
The qualification of the general rule, as thus stated, is
supported by decisions of high authority, and was applicable to the
case on trial.
Radley v. London & Northwestern
Railway, L.R. 1 App.Cas. 754;
Scott v. Dublin &
Wicklow Railway, 11 Irish Com.Law 377;
Austin v. New
Jersey Steamboat Co., 43 N.Y. 75, 82;
Lucas v. Taunton
& New Bedford Railroad, 6 Gray 64, 72;
Northern
Central Railway v. Price, 29 Md. 420.
See also Williamson v.
Barrett, 13 How. 101,
54 U. S.
109.
It was argued that this instruction was inapplicable because
there was no evidence that the defendant knew the peril of the
plaintiff, or had either time or opportunity, by the exercise of
any degree of care, to guard against it; that if his negligence
consisted in standing in a dangerous position too near the edge of
the wharf, the defendant was not bound to anticipate his remaining
in that position; but that his negligence in fact consisted in
placing his foot between the flooring and a fender pile, which the
defendant could not have been aware of, or guarded against.
It is true that the instruction could not apply, and therefore
could not be understood by the jury to apply, to the latter
alternative. But upon the question of the plaintiff's position and
attitude the evidence was conflicting, and it was
Page 139 U. S. 559
indisputable that the steamboat was approaching the wharf at his
call, and for the purpose of receiving freight from his hands, and
that her pilot and officers saw him as he waited on the wharf. The
jury might well be of opinion that while there was some negligence
on his part in standing where and as he did, yet that the officers
of the boat knew just where and how he stood, and might have
avoided injuring him if they had used reasonable care to prevent
the steamboat from striking the wharf with unusual and unnecessary
violence. If such were the facts, the defendant's negligence was
the proximate, direct, and efficient cause of the injury.
Upon careful consideration of all the instructions given to the
jury, we are of opinion that they were applicable to the evidence
introduced; that they fully covered the instructions requested, and
that they contained nothing of which the defendant has a right to
complain.
A single question of evidence remains to be considered. A
witness, called by the defendant, testified that he had had about
twelve years' experience in navigating the Potomac River, as
wheelman, first mate, second mate, pilot, and captain, but had
never been at this wharf. He was asked
"if, in his judgment, a position within two or three feet from
the fender piles of a wharf constructed like the Shamrock pier was
a reasonably safe place for a wharfinger to stand when a boat was
approaching in order to take off freight or to make a landing?"
Objection was taken to this question by the plaintiff's counsel,
and sustained by the court, because the witness had not shown
himself to be a wharfinger, and the defendant excepted.
The ground of the exclusion of the question appears to have been
that the judge was not satisfied of the qualifications of the
witness as an expert upon the subject inquired of. Whether a
witness is shown to be qualified to testify to any matter of
opinion is always a preliminary question for the judge presiding at
the trial, and his decision thereon is conclusive, unless clearly
erroneous as matter of law.
Spring Co. v. Edgar,
99 U. S. 645;
Stillwell & Bierce Co. v. Phelps, 130 U.
S. 520;
Montana Railway v. Warren, 137 U.
S. 348. But
Page 139 U. S. 560
in this case, independently of any such consideration, the
question whether the place where the plaintiff stood on the wharf
was reasonably safe was one of the questions to be determined by
the jury, depending on common knowledge and observation, and
requiring no special training or experience to decide, and upon
which therefore no opinions of witnesses were admissible.
Milwaukee & St. Paul Railway v. Kellogg, 94 U. S.
469;
White v. Ballou, 8 Allen 408;
Simmons
v. New Bedford Steamboat Co., 97 Mass. 361.
Judgment affirmed.