Dunn v. New Haven Steamboat Co.

The plaintiff was a passenger on the defendant’s steamer from the city of New York to New Haven. He paid his passage-money and received a ticket for the trip, with the number of his berth on its back. He testified that he had with him when he retired seventy-three dollars, in bills; a gold watch, worth sixty or seventy dollars; a gold pen and pencil for which he paid three dollars; railroad tickets, for which he paid six or seven dollars, and a silver watch he had repaired for his brother, for which no value was given, and that these articles were in his vest and placed under his pillow. And that when he awoke in the morning the vest and those articles had been stolen. This evidence was not contradicted.

It was charged in the complaint that the loss was owing to the negligence of the persons in charge of the steamer, which was denied by the defendant. And whether the charge had been sustained was a question for and submitted to the jury. In its submission by the court the legal rules on which the action depended were plainly and clearly brought to the attention of the jury. But, as is usually the fact, that satisfied neither of the counsel. And each requested further intructions, some of which they were not entitled to have submitted to the jury. Among these requests was one by the defendant’s counsel in which the court was asked to charge: That if the jury believe the plaintiff was guilty of negligence in disposing of his property in the way he did it is a bar to his recovery. And that was answered by the court:

I so charge. If you find that it was a negligent act for him to have this amount of money in his berth, under the circumstances, instead of giving it to the employees of the company to take care of, if you find affirmatively that that was negligence, then the defendant is entitled to a verdict.

And to that the plaintiff excepted. It did not follow, even if it was negligent for the plaintiff to have this money, which amounted to seventy-three dollars, in his berth, that he should be thereby

The court was also requested by the plaintiff's counsel to charge that a passenger on such a steamboat has a right, when he retires, to retain such articles as those the plaintiff had in his possession at the time of retiring. That, the court at first left “ it to the jury to say whether, under all the circumstances, that would be justified.” The counsel then asked the court again to charge that proposition, and the response was: “ He has a right to carry them with him on his trip, but not to retain them in his berth.” . And to that the plaintiff’s counsel excepted. The jurors may be assumed to have been men of plain sense and experience, who would not consider the charge qualified with these particular directions with the legal acumen of persons having a long course of professional training. But they would be very hable to be impressed with the conviction that the plaintifE had no ground of action because of his improper conduct in taking these articles into his berth. The statement was without qualification that he had no right to retain these articles in his berth. And it followed from that direction, as jurors would commonly understand it, that he had no right to complain of their loss by theft. These directions were so plainly given that the jury was not liable to misunderstand them or to fail to act upon them. And their attention would not be diverted from them by what had been very properly said to them previously in ■ the charge. They were the last directions, and as they were so plainly given, must have improperly determined the jury against the plaintiff.

The judgment and order should, therefore, be reversed and a new trial directed, with costs to the plaintiff to abide the result.

Beady, J., concurred.

(dissenting) :

This action was brought to recover the value of certain personal property claimed to have been lost by the plaintiff while a passenger on the defendant’s boat, the “Elm City,” on a voyage from New York to New Haven in the night-time.

It appeared from the evidence that the plaintiff had been a traveling salesman for some time prior to the occurrence in question, and that in December, 1883, he took passage on the “ Elm City ” for New Haven, leaving New York at 11 p. m. He paid seventy-five cents for his passage ticket. He knew that there were state-rooms on the boat and had used them before himself, but on this occasion he did not take one. A berth was assigned him, the number of which was put upon the back of the ticket. He placed some of his baggage in charge of the officers of the boat, but kept his money and jewelry. The berth occupied by the plaintiff was in the main cabin, which was brightly lighted when he retired, and was lighted when he woke up in the morning. There was a porter in the cabin on watch when he went to bed; and he testified that when he woke up and discovered his loss the porter was not in sight. It appeared that, upon retiring, the plaintiff took off his vest, putting into it his money, his scarf pin, gold pen-holder and some railroad tickets, folded it up and put it under his pillow.

The evidence further showed that, upon the night in question, there was a watchman in the cabin and two on the deck, and the two deck watchmen went through the cabin every fifteen minutes, and the captain two or three times. There was a safe in the office for securing the valuables of passengers if they saw fit to deposit them; and there was some dispute as to whether any notice of the existence of such safe was posted in the cabin or not.

Upon the trial the learned court charged the jury that the defendant was a common carrier, and was bound to carry the plaintiff, who was a passenger, to his destination; that it was bound to take care of the property or baggage that a passenger intrusted it to carry, and that for the property intrusted to its care it would be responsible if the employees of the company failed to deliver it safely at the end of the journey. And that as to such portion of his baggage or wearing apparel as a passenger retained control of and did not give to the agents of the company a different rule applied. The obliga

In the case at bar the condition of the plaintiff was precisely the same as though he had laid down upon a sofa in the cabin to sleep; and the principle of liability of a common carrier has not been carried so far as to insure the goods of a.passenger if he was robbed under those circumstances. Unless there was negligence upon the part of the common carrier in taking .that ordinary care to prevent the happening of such an occurrence the right of recovery would not exist. And this is all the duty whieh the defendants owed to the plaintiff — ordinary care; and this the jury found that he had received at its hands, and, consequently, held that he had no right

“ I ask your Honor to charge also, as matter of law, that a passenger on a steamboat, such as this was, has a right, when he retires, to retain such articles as those the plaintiff had in his possession at the time of retiring.”

“ The Court—That I refuse to charge as a matter of law. I leave it to the jury to say whether, under all the circumstances, that would be justified.”

Tins request was to the effect that the plaintiff had a right to recover, which, as already seen, was not necessarily the case, and it was for the jury to determine whether such was the fact or not, and, therefore, the court was justified in the refusal. The plaintiff’s counsel excepted to the refusal of the court, and then asked the court again to charge that proposition. The court replied : “ He has a right to carry them with him on his trip, but not to retain them in his berth.”

It is urged that this was directing a verdict for the defendant. But it will be seen from the context that the plaintiff’s counsel was urging the court, as matter of law, to charge that he had a right to retain them in his berth, and the answer of the court was to the effect that he had a right, as matter of law, to carry them with him on the trip, but not, as matter of law, to retain them in his berth at the risk of the defendant; and this was all that this charge meant, and because the learned counsel, after insisting upon the court charging that which it had refused to charge, got the opposite proposition from that which he was contending for, he has no reason to complain.

There seems to have been no error and the judgment and order appealed from should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to the plaintiff to abide the result.