1. The testimony of experts is admissible in determining an
issue involving a question of nautical skill.
2. Although a transportation company engaged in towing a barge
from one point to another does not occupy the position of a common
carrier nor have that exclusive control of her which that relation
would imply, it does have control of her to such extent as is
necessary to enable it to fulfill its contract, and is therefore
bound to exercise such degree of diligence and care as a skillful
performance of the stipulated service requires.
3. A mere expression of opinion by a judge upon a question of
fact is not a ground of error.
4. The action of the court below, in refusing to charge the jury
as requested by the defendant, and the charge as given, considered
and held not to be erroneous.
This was an action on the case by Hope, the plaintiff below, to
recover damages for the loss of the canal barge or vessel Mary
her cargo, and for freight therein. The plaintiff
alleges in substance that he delivered the barge, valued at $3,000,
to the defendant to be towed, for a certain sum to be paid
therefor, from Jersey City to New Haven, and that by reason of
gross and culpable negligence and the want of ordinary care and
skill of the defendant in towing and conducting the barge, she
became totally lost. The defendant pleaded the general issue. The
jury found for the plaintiff for $2,125.30, and, judgment having
been rendered thereon, the defendant brought the case here.
The remaining facts, the charge as given and that refused, as
well as the assignment of errors, are set forth in the opinion of
MR. JUSTICE HUNT delivered the opinion of the Court.
Hope, the plaintiff in the circuit court, sought to recover
damages for the loss of his barge, which the defendants undertook
to tow from Jersey City to New Haven, through Long Island
The barge was lost before reaching her destination, and
Page 95 U. S. 298
the jury to which the case was submitted found a verdict for the
plaintiff for $2,125.30 damages. This was based upon the theory of
the negligence of the defendants in the performance of their
With the general question of negligence we have nothing to do.
The finding of the jury is conclusive upon that subject. It is only
the specific allegations of error in the rulings or charges of the
judge at the trial that we are called upon to consider.
These allegations are as follows:
It is said that the court erred first in overruling the
objection of defendant's counsel to the following question, asked
of Patrick McCarty, a witness, by the counsel for the plaintiff:
"With your experience, would it be safe or prudent for a tug boat
on Chesapeake Bay or any other wide water to tug three boats
abreast with a high wind?"
The witness had testified that for many years he had been the
captain of a tug boat, and was familiar with the making up of tows;
that he was a pilot, and had towed vessels on Long Island Sound,
although he was not familiar with the Sound, but that he was
familiar with the waters of the Chesapeake Bay.
The witness was an expert, and was called and testified as such.
His knowledge and experience fairly entitled him to that position.
It is permitted to ask questions of a witness of this class which
cannot be put to ordinary witnesses. It is not an objection, as is
assumed, that he was asked a question involving the point to be
decided by the jury. As an expert, he could properly aid the jury
by such evidence, although it would not be competent to be given by
an ordinary witness. It is upon subjects on which the jury are not
as well able to judge for themselves as is the witness that an
expert as such is expected to testify. Evidence of this character
is often given upon subjects requiring medical knowledge and
science, but it is by no means limited to that class of cases. It
is competent upon the question of the value of land, Clark v.
9 N.Y. 183; Bearss v. Copely,
93; or as to the value of a particular breed of horses, Harris
v. Panama Railroad Co.,
36 N.Y.Superior Ct. 373; or upon the
value of the professional services of a lawyer, Jackson v. New
York Central Railroad
Page 95 U. S. 299
2 Thomp. & C. (N.Y.) 653; or on the question
of negligence in moving a vessel, Moore v. Westervelt,
Bosw. (N.Y.) 558; or on the necessity of a jettison, Price v.
44 N.Y. 94. In Walsh v. Washington Marine
427, it was decided that the
testimony of experienced navigators on questions involving nautical
skill was admissible. The witness in that case was asked to what
cause the loss of the vessel was attributable, which was the point
to be decided by the jury. The court sustained the admission of the
evidence, using this language:
"We entertain no doubt that those who are accustomed to the
responsibility o command and whose lives are spent on the ocean are
qualified as experts to prove the practical effect of crossseas and
heavy swells, shifting winds and sudden squalls."
The books give a great variety of cases in which evidence of
this character is admissible, and we have no doubt of the
competency of the evidence to which this objection is made.
Second, the defendants requested the court to charge the
"That the plaintiff's barge the Mary E. Loughney,
within the possession and the exclusive care and control of her
owner, and the defendants, the Eastern Transportation Line, were
not bailees of the boat, nor was the barge placed within their
exclusive custody and control, and they were only liable for
failure to use ordinary care and diligence."
To which the court answered:
"By the contract between the parties, the defendants undertook
to tow the plaintiff's barge from Jersey City to New Haven. As a
necessary incident of this engagement, the defendants were entitled
and were bound to assume supreme control and direction of the
plaintiff's boat and of the persons in charge of her so far as was
necessary to enable them to fulfill their engagement, and they were
bound to exercise such degree of diligence and care as a prudent
and skillful performance of the service for which they stipulated
The answer of the court properly defined the position of the
parties. While it was very well to ask a charge that the
transporter of the boat was not a bailee, and perhaps that the boat
was not within his exclusive control, and that only ordinary care
and diligence were required on his part, it was
Page 95 U. S. 300
quite incorrect to ask a charge that the boat was within the
possession and the exclusive care and control of her owner.
The transportation company did not occupy the position of a
common carrier, and did not have that exclusive control of the
barge which that relation would imply. It did not employ or pay the
master and the men in charge of her, nor did it exercise that
internal control of her cargo, its storage, its protection, and the
like, which belonged to a bailee, and it was not bound to the
extraordinary duties and liabilities of a common carrier.
Alexander v. Greene,
3 Hill (N.Y.) 9.
It is, however, impossible to admit the proposition that the
barge remained in the exclusive possession, care, and control of
her owner -- that is, that the transporter had not and could not
take any, the slightest, care of her, and was not permitted to
exercise the slightest control over her, and had no possession of
her of any sort or character.
She could not be towed except by being taken in charge by the
tug -- that is, under its care and control and management. When the
master of a tug undertakes to transport a barge, he must apply the
means for that purpose. He must furnish motive power not only, but
he must direct her location, whether on the part or the starboard
side, whether she shall be the inside boat or the outside one, when
and how she shall be lashed to other boats, with what fastenings
she shall be secured as she is dragged through the water, whether
she shall go fast or slow, when, if at all, she shall drop astern,
when she shall go to harbor, how long remain there, and what shall
be her course of navigation. These tows consist at times of thirty
or forty boats, and they must all be under one head and subject to
one judgment, which is that of the transporter. Whether this
judgment was carefully and skillfully exercised in this case formed
the question which was passed upon by the jury. It is extremely
inaccurate to say that one who does, and who must do, all these
things is not, while doing them, in the exercise of the slightest
possession or care or control over such vessel. The charge of the
judge, on the contrary, that the transporter had the supreme
control of the barge, so far as it was necessary to enable it to
fulfill its contract to tow the barge, was correct.
Page 95 U. S. 301
If a request to charge contains one unsound proposition, it is
not error to refuse to make the charge, although it contains many
sound propositions. Beaver v. Taylor, 93 U. S.
Third, the two objections following may be considered together.
They are as follows:
1. The court below erred, it is said, in allowing the following
request to charge of plaintiff below:
"If the plaintiff was placed in peril by the negligence of the
master of defendant's tug, and jumped from his boat, reasonably
supposing it was going to sink, the plaintiff may recover in this
action although the fact of plaintiff's leaving his boat increased
This was allowed and given by the court.
2. The court below erred in its answer to the sixth request of
the defendant below.
The request was:
"If the jury believe that the conduct of the plaintiff was such
as to leave his boat for any time without being under the care or
control of anyone, the result of which was to contribute to her
loss, then the jury should find for the defendants."
The court answered:
"As an abstract proposition, this is true. But if the
plaintiff's boat was left in the condition stated, under
circumstances which involved imminent peril to the lives of those
who remained on board of her, or warranted a reasonable
apprehension of such peril, they were justified in abandoning her,
and by so doing were not guilty of contributory negligence."
The boat of the plaintiff was in danger of sinking; he believed
the danger to be imminent, and to save his own life jumped from his
boat to the tug, leaving his boat without the care or control of
anyone on board of his boat.
The counsel for the transportation company does not seriously
argue that the plaintiff was bound to remain on his boat when it
was probable that she would immediately sink, or that a reasonable
apprehension of imminent peril to his own life did not justify his
abandonment so as to avoid the charge of contributory negligence.
He argues that the peril was not imminent in fact, and again that
the peril was due to the plaintiff's previous misconduct or
negligence, and that there
Page 95 U. S. 302
is a failure to define the connection between the peril and any
None of these points is embraced within the requests made or the
charge given. There was evidence to sustain the plaintiff's theory
of imminent peril, and the judge submitted to the jury the
reasonableness of his apprehension. The previous negligence of the
party, if any, its connection with the peril, and the law upon that
subject, are not alluded to either in the requests we are
considering or in the answer given to them. The charges are fairly
as well as correctly given in response to the requests made. If the
defendant desired additional or more specific instructions, he
should have asked for them.
The last objection is, that the judge charged the jury as
"If you conclude, after careful consideration of all the
evidence, after the instructions we have given you, that the
plaintiff is entitled to recover, you will find a verdict in his
favor for the value of the barge, as it has been shown by the
proofs, and for the net amount of the freights -- that is, I
believe, $1,800 -- as shown, aside from the testimony of the
plaintiff himself, to have been the value of the barge at the time,
and $90, the net amount of the freight, so that these two amounts
are the sums which the plaintiff is entitled to recover if you are
satisfied that he is to recover at all."
This objection is not a serious one.
1. It may be doubted whether the judge undertakes to interfere
with the province of the jury by charging them that the value of
the vessel was $1,800, and that of the freight $90, as is assumed
in the argument. He simply expresses his belief or his opinion that
such is the value proven. He says, "That is, I believe, $1,800, as
shown, aside from the testimony of the plaintiff himself." So when
he adds, "These two sums are the amounts which the plaintiff is
entitled to recover, if you are satisfied that he is entitled to
recover at all," it is a part of the same expression of opinion. An
expression of an opinion simply by a judge upon a question of fact
is not a ground of error. Durkee v. Marshal,
(N.Y.) 312; Dow v. Rush,
28 Barb. (N.Y.) 157; Powell
v. Jones, id.,
2. When the attention of the judge was called to the matter by
the defendant's exception, the record adds these words:
Page 95 U. S. 303
"The judge did not undertake to fix the value of the barge, but
merely referred to the proof relating to it, and said the jury
would be justified in finding accordingly."
There could be no misunderstanding by the jury after this
3. If there was an error in this respect, it was quite harmless.
It fixed for the jury, upon the assumption claimed, the sum
required by the testimony to be found. There was no conflicting
evidence on the subject. There are no circumstances which would
justify any finding for a less sum than that indicated by the
judge. It was the absolute duty of the jury, upon the evidence, to
find not less than that named sum if they found for the plaintiff,
and a different verdict might have been set aside as against the
evidence. A verdict, under these circumstances, will not be
disturbed by an error of this character. Corning v. Troy Iron
& Nail Factory,
44 N.Y. 577.
Upon the whole case, we are of the opinion that the record shows