Miller v. Ocean Steamship Co. of Savannah

The action was brought to recover damages-resulting from personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. The latter was a corporation of the state of Georgia, and,, as a common carrier of passengers, was the proprietor of and engaged in running a steamship, known as the City of Savannah,, between the cities of New York and Savannah.

On March 10th, 1885, the plaintiff took passage at New York, for Savannah, on that vessel, which arrived at the latter place on the morning of the thirteenth of that month. The plaintiff was on the hurricane deck with several other passengers.. A line was thrown out from the bow and secured to the wharf-, with a view to turn the vessel around before landing. This was usual, and to accomplish it the flood tide in the Savannah river was relied upon, but when the vessel had turned so as to be about at right angles with the landing, her further progress in turning was interrupted hy slack tide. The hawser was then brought into requisition to force her around, and for that purpose it was secured at the proper place on the dock, taken through the stern chock, and then carried along on the hurricane deck to the capstan on the bow, operated by an engine beneath

The defective stick used was taken from some wood in the hold used as dunnage, and how long it had remained there as dunnage does not appear, or whether for such use it had lain in water in the hold of the ship the evidence does not disclose other than by inference. The place there, where the stick was selected and from which it was taken, was not well lighted at the time, and it was just at daylight in the morning when it was brought out and used. There does not appear to have been any test applied to ascertain its condition, or inherent strength, but the information relied upon hi that respect was dependent solely upon the appearance it furnished to the observation of the acting quartermaster, who obtained and used it for the purpose to which it was applied. He says it was Georgia pine, and he thought it sufficient for the toggle when he picked it out in the hold; and, that his opinion was the same after he brought it on deck. He also testified that he had seen toggles used a large number of times to haul vessels along the dock, but had before seen none used to warp a vessel around to the dock, as was done in this instance. It appeared that there were eyebolts about the vessel, and near the place of this bow chock, and into which the block may have been securely hooked, but it appears that the method of using a toggle was frequently adopted for the purpose of moving vessels

It does not appear that force had ever before on this vessel been applied in the manner that it was on this occasion, or for the purpose of warping her around to the wharf. The vessel was two hundred and seventy feet in length, and her tonnage exceeded two thousand tons. With a slack tide and the tendency of the current down the river, it may be seen that great force was requisite to suddenly turn the ship by means of the line making the angles on its way from the dock to the capstan, that this one did when the power of the capstan engine was applied. It was apparent that very great strain would come upon the toggle. And it would be no answer if such were so, that the requisite strength of the appliance was not appreciated for the accomplishment of its purpose. Mor would it necessarily be sufficient for the party intrusted with its provision to say he thought it had the necessary firmness and tenacity to sustain what it would be required to bear. If such speculation were, as matter of law, sufficient to repel the permissible inference of negligence, responsibility might be quite easily avoided. There was no necessity for experiment on the occasion in question. Adequate means were at hand, sticks which may have been safely assumed to have the requisite strength for the toggle, and so far as appears, one of the eyebolts on the ship may have been effectually and safely used to hold the block. In view of the entire evidence upon the subject, the conclusion was permitted that the defendant failed to exercise the care and diligence fairly required of it; and that the injury to the plaintiff was occasioned by its negligence. This, upon the evidence, was

Of the numerous requests to charge made by the deféndant’s counsel, only one, which the court refused, seems to be relied upon by him on this review. The one of the two propositions in tliat'request, was, that “the vigilance and caution to bo exercised in avoiding disaster should not necessarily be com

But the evident purpose of the request had relation to the degree of care imposed upon the defendant. The requirement of the higher degree of care is not necessarily dependent upon actual apprehension of danger, but upon the dangerous consequences which are likely to result from a defective condition of machinery and appliances where persons are so situated as to enable them to rely for protection upon the diligence of those having the control and operation of the means employed. This is especially applicable to common carriers of passengers, although injuries may result from causes from which danger may not be apprehended, if due care be observed by the passenger. In the latter case the carrier -would be held responsible for the want of ordinary care only. Such was the case of Kelly v. Manhattan R. Co. ( 112 N. Y. 443 ) and some other cases cited by the defendant’s counsel. But in the present case it appears that danger of possible injury was apprehended

It was not error to submit to the jury the question whether it was carelessness on the part of the defendant in placing the toggle in such position that it fell out or through the loop into the water, if they found that it was so placed. The view of the court evidently was, as appears by the charge, that the toggle was broken by the strain upon it, but there was some evidence from which it might be inferred that it was put perpendicularly into the loop, while the weight of evidence was that it was inserted horizontally. The portion of the charge excepted to had relation to the evidence that it was perpendicularly placed into the strap, and in that view the circumstances were such as to permit the submission to the jury of the question that was submitted to them in that respect. Immediately after the toggle gave way one of the capstan bars was effectually used to supply its place and the ship warped around to the dock. The defendant’s exception was to the evidence that the bar was made use of for a toggle. Those bars were near the bow capstan on the deck, they were ash timber and apparently, and in fact, of adequate strength for the toggle. The use of the bar was in the transaction of bringing the vessel to the dock continued. Its use proved that this might be accomplished in that manner by existing adequate means. This did not come within the rule which excludes evidence of subsequent change of conditions to obviate what might be regarded as a recurrence of that which may have happened on a prior occasion. It was an efficient supply of the demand required at the time to accomplish that which was then in progress. And the reception of the evidence was not error.

The other exceptions to which attention has been called by the learned counsel for the defendant, have been carefully

The judgment should he affirmed.

All concur, except Potter, J., not sitting.

Judgment affirmed.