Case .94 — Action fob Personal Injuries

June 13.

#### Memphis & Cin. Packet Co. v. Buckner.

APPEAL EBOM KENTON CIBOUIT COUBT.

Judgment for Plaintiff and Defendant Appeals.

Aeeibmed.

Trial- — Sending Juby to View Pbemises — Steamboat CabbieR — Cabe Required as to Shipper Who Feeds His Stock — Contributory Negligence.

Held: 1. In an action to recover damages for injuries received from falling into an open hatchway on a boat, it was discretionary with the court to send the jury to view the boat.

2. A shipper of stock who is carried on a steamboat on condition that he is to care for his stock, is entitled to the same care as other passengers; and therefore it was negligence as to such a passenger to leave a hatchway open, unlighted and unguarded, without any warning to him from the officer in charge of that part of the boat, who knew that he was passing that way in earing for his stock, and also knew the danger.

3. As plaintiff had passed over that way several times in company with, or with knowledge of, the mate, and found it all right, he was not guilty of contributory negligence, as matter of law, in assuming that it was safe, but that question was for the jury.

BAiRVEY MEYERS fob appellant.

1. The evidence shows conclusively that appellee knew where the hatchway was, and that it was liable to be open, and in going to feed his stock, he could have avoided going near it, and would not have been injured had he used ordinary care.

2. The burden was upon the appellee to show negligence on the part of appellant,' in order to entitle him to recover, even if he were not guilty of contributory negligence. Hughes v. Railroad Co., 91 Ky., 531; Crane’s Adm’r. v. Ohio Valley Tel.Co., 47 S. W., 760; Reed v. Cov. *&*Cin. Bridge Co., 16 Ky. Law Rep., 379; Dwyer v. Natl. Steamship Co., 4 Fed. Rep., --; Murray v. McLean, 57 Ill., 378; Shearman *&*Redfleld on Negligence, sec. 523.

3. Instruction No. 1 given by the court made it the duty of the officers of the boat to direct appellee which route or way he . should take. If appellee voluntarily went upon deck it should *702have keen his duty to make inquiry, and not the duty of the officers to seek him out and inform him.

4. The court erred in refusing to permit the jury to visit and inspect the boat where the injury was received.

W. S. PRYOR, Attobney fob appellant.

1. There are two views of this case presented by the testimony, but in either aspect the verdict should have been for the defendant, and the jury should have been so instructed.

2. The defendant, by his own request, and it was a part of his contract, was allowed to feed and take care of his own stock on the boat. He knew there were hatchways on boats for loading beneath the second deck, and yet with a dim light, without making inquiry as to the best route to take, he negligently fell into the hatchway and was injured. This was such contributory negligence as precludes his right to recover. He assumed the risk. Shearman & Redfield on .Negligence, 294.

M. L. HARBISON and R. P. ERNST fob appellee.

1. The court properly overruled the motion of appellee for peremptory instruction. The record presents questions of fact that were properly submitted to the jury under proper instructions.

2. Appellant knew that appellee was using this passage way to go to his horses and knowing it was dangerous, no other way was pointed out to him.

3. On the occasion when the accident occurred the passage way was darkened by reason of piles of freight on both sides. The hatchway was left open. There was no guard about it, and no person there to warn appellee of the danger. There was no evidence that he knew of this hatchway. Lake Shore *&*M. S. Ry. Co. v. Brown, 123 Ill., 162; Chicago & E. Ill. Ry. Co. v. O’Connor, 119 Ill., 586; L. R. & Ft. S. Ry. Co. v. Miles, 40 Ark., 298; Lawson, Admx., v. Chicago, 'St. P., &c., Ry. Co., 64 Wis., 447; Chicago, Milwaukee, &c., Ry. Co. v. Carpenter, 12 U. S. A., 392; Missouri ■Pac. Ry. Co. v. Ivey, 71 Texas, 409; Fla. Ry. & Nav. Co. v. Webster, 25 Fla.; Porter v. N. Y., L. E. & W. Ry. Co., 13 N. Y. Supp., 491; Carroll v. N. Y. & N. H. Ry. Co., 1 Duer., 571, 1st Syl.; Creed v. Pa. Ry. Co., 86 Pa. St., 139; B. & O. R. R. Co. v. State, 72 Md., 37; O’Donnell v. The Ry. Co., 59 Pa. St., 239; Chicago & Alton Ry. Co. v. Winters, 175 Ill'., 293 and 303; N. Y. C. & St. L. Ry. Co. v. Blumenthal, 160 Ill., 40; Chicago City Ry. Co. v. Rood, 163 Ill., 477; Richmond & Danville R. R. Co. v. Powers, 149 U. S., 43; Grand Trunk Ry. v. Ives, 144 U. S., 408 and 417; Texas *&*Pac. Ry. Co. v. Gentry, 163 U. S., 353; *703Shearman & Red. on Negligence (5th ed.), yol. 1, secs. 52 and 54; Cahill v. Cincinnati, &c., Ry. Co., 92 Ky., 345; Needham y. L. *&*N. It. R. Co., 85 Ky., 423; Lou. Southern R. R. Co. v. Minogue, 90 Ky., 369; L. & N. R. R. Co. v. Walton, 13 Rep., 461, par. 21.

4. There was no error either in'giving or refusing instructions.

5. The verdict is not excessive and was fully warranted hy the evidence. Hanover Ry. Co. v. Coyle, 55 Pa. St., 396; 3 Sutherland on Damages, page 716; L. & N. R. R. Co. v. Turner, 13 Rep., 606.

6. We do not know of any ease in which it has been held that a trial court abused its discretion in refusing to grant a motion to have the jury visit some public conveyance for the purpose of inspecting it. Clayton v. Chicago, &c., Ry. Co., 67 la., 238.

Opinion op the court by

JUDGE HOBSON

Affirming.

Appellee, Hubbard G. Buckner, took passage for himself and family on appellant’s steamer New South from Cincinnati, Ohio, to Goodrich Landing, in Louisiana, and while on the boat fell into an open hatchway, sustaining severe injuries, to recover for which he brought this suit. The jury returned a verdict in his favor for $4,500. The evidence was conflicting on the trial, but his version of the facts was substantially as follows: He took two horses with him, and made arrangements with appellant’s superintendent that he would look after his own horses on the trip. The horses were near the stern of the boat. Ap-pellee fed them the evening that he got on the boat; also the next morning. He passed over the hatch in controversy in going and returning on both these occasions. The officer who had charge of the deck was with him when he fed the horses in the morning, and returned with him to the upper deck. Soon after breakfast he went down again, to see after his horses. The same officer saw him going, but said nothing to him; and soon after leaving this officer, as he was on his way to the horses, he fell into the open hatch, which was at a dark place on the *704boat from the freight being piled up in such a way as to cut off the light. The freight was so piled as to leave a narrow passway between, as if for persons to go. He had passed through this space at least four times, and had found it all right; but as he went along on this occasion he fell into the hole from the hatch having been left open for some reason. The officer testified that he called ap-pellee’s attention to the hatch, and told him to go another way. Appellant also introduced proof showing that the hatch was open for the reason that freight was then being passed down through it into the hold'; that two men were by the side of the hatch, passing the freight down, and the others 'below receiving it. Appellee denied all this, and the jury seem to have believed his testimony. There was no error in the admission or rejection of evidence. The instructions of the court were very clear, and as favorable to appellant as the law warrants. It was discretionary with the court to send the jury to look at the boat, and there seems, under the statute, to have been no error as to the place of trial.

The chief contention of the distinguished counsel for appellant is that the jury should have been instructed peremptorily to find for appellant on the ground that there was no negligence in leaving the hatch open, and that it was incumbent on appellee, in walking over the lower deck, where he knew there were hatchways, to avoid falling into tÉem. The position of counsel, which was embodied in several instructions asked in the lower court, is stated in the brief in these words: “The appellee occupied no ’better position than the roustabout and employe, and while in the passenger cabin a degree of care and safety for his protection as a passenger is assured. When he leaves the cabin, and seeks to go upon the deck to perform *705the menial service of feeding his stock or that of others, he must know, and is presuméd to know, that his shield as a passenger is laid aside, and that the perils pertaining to such risks he voluntarily assumed.” ' The court below properly refused to assent to this view of the case. When appellant agreed with appellee that he might feed and care for his horses on the trip, it was his duty not to endanger him unnecessarily, and when it knew how he was proceeding to- care for his stock it was its duty to inform him of dangers known to it but unknown to him. He had passed over this passway so often, and the freight was so piled about it, as to justify him in blelieving that it was safe, and had been left there for a passway. To leave a hold open in such a place, where there was no light, when the carrier knew of its use 'by appellee and others, was, it seems to us, negligence, unless some warning was given, for the officer in charge of the deck knew, not only that appellee was going this way, but saw him, just before he was injured going over it again. Appellee did not cease to be a passenger when he went to feed his stock, nor was appellant absolved from its obligation to protect him from dangers to which he was exposed, of which it had notice but he Avas ignorant. Thus, in Railway Co. v. Carpenter, 12 U. S. App. 392, (5 C. C. A., 551), (56 Fed., 451), the plaintiff was a stock dealer, traveling over the railroad in charge of some car loads of stock, which were near the front end of the train. When a stop was made at a station, he went forward from the caboose in which he had been riding, to examine the stock. While he was thus engaged, the engine gave the signal for starting, and the train pulled out. Finding it would be impossible for him to go back and *706board the caboose, owing to the speed that the train would attain, he climbed upon one of the forward cars, for the purpose of walking back over the cars to the caboose; this being the custom. While walking back, he was struck by an overhead bridge, and severely injured. After he ■started to walk back, he did not turn to look in the direction in which the train was moving. The bridge might have been seen for a distance of three-quarters of a mile had he 'been looking in that direction. There was a verdict for the plaintiff, which was upheld on appeal. Among other things, the court said: “Under the circumstances we are not prepared to hold that it was his duty to assume that there were dangerous structures ahead, and that he was guilty of culpable negligence in failing for a few minutes to turn and look for such structures. On the contrary, we think that the question of negligence in this respect was properly a question for the jury, and that the circuit court did right in submitting it to the jury.” It is well settled that one who is carried on condition that he is to care for stock does not thereby cease to be a passenger, but is entitled to the same care as other passengers carried on the same train or conveyance. Lawson v. Railway Co., 64 Wis., 447, (24 N. W., 618), (54 Am. Rep. 634); Railway Co. v. Ivy, 71 Tex. 409, (9 S. W., 346), (1 L. R. A. 500); Railway Co. v. Miles, 40 Ark. 298, (48 Am. Rep. 10). In Railroad Co. v. Beebe, 174 Ill., 13, (50 N. E. 1019), (43 L. R. A. 210), a stock owner on a freight train under a contract to care for his stock, but to ride in the caboose, was injured in the stock car, where he had gone to look after his stock, and before he had finished attending to it the train started out with him still in the stock car. When it stopped again, it was suddenly started with a violent jerk, by which he was thrown from the stock car, and *707severely injured. Among' other things, the court said: “The contract must be so construed as to be consistent with itself. If the deceased was obliged to feed, water, and take care of his stock, he had the right to go into the car where the stock was, in order to fulfill this obligation. Counsel for appellant claim that while the train was in motion it was the duty of the deceased to be in the caboose, and that only when the train stopped did he have any right to go into Ms car to feed and water his stock. The evidence tends to show that when the train stopped at Lasalle the deceased was in his own car, and was there engaged in watering his stock, and was assisted in so doing by the conductor and brakeman of the train. While he was thus engaged in feeding and watering his stock, the train suddenly started,and did not again stop until it reached the place where the accident occurred. The stop made at Lasalle would appear to have been a very short one, and not long enough to enable the deceased to finish, the acts of attention which he was giving to his stock. It was a fair question to be submitted to the jury whether, under all the circumstances, the servants of appellant in charge of the train did not fail to give the deceased sufficient time to feed and water his stock and return to the caboose before the train started. After the train started, and while it was in motion, it was not possible for him to reach the caboose. It was a question, therefore, for the jury to determine, whether or not the deceased was guilty of contributory negligence in being in the car, and whether or not he was not forced to remain there by rea-, son of the conduct of the servants of the appellant in causing the train to start before he had finished caring for the stock. If there had been no provision in the contract' of shipment requiring the deceased to feed and water his *708stock, it would have been the duty of appellant to do s!o, and appellant would have been liable to the deceased for a loss or injury occurring to the stock in case it had failed to discharge this duty. But, inasmuch as, by the terms of the contract, the duty of caring for the stock was assumed by the deceased, as the shipper thereof, the appellant was under obligation to afford him a reasonable opportunity and reasonable facilities for doing what the contract required him to do. It failed to furnish him such reasonable opportunity and facilities if it refused to detain its train long enough at a proper stopping place to enable him to feed and water his stock and return to the caboose before the starting of the train. 5 Am. & Eng. Enc. Law (2d Ed.) pp. 436, 437.” In this case, under the instructions of the court, the jury have, in effect, found that it was in the contract for carrying plaintiff and his family and horses that during the trip plaintiff should feed and care for the horses; that appellant did not inform him of any route or way to travel in going to and from the horses; that he exercised ordinary care in selecting the route and using it; that appellant’s officer in charge of that part of the boat knew, before plaintiff was injured, that he was using this route, and knew of the danger in its use, and did not inform him of the danger, or of any other route to travel; and that the hatch was negligently permitted to remain open, and unlighted and unguarded, by reason of which he was injured. While the evidence is conflicting, we are not prepared to say that the verdict is against the evidence, or that, considering the nature of the injuries, the amount allowed appellee is excessive. In its regard for human life the law imposes upon carriers of passengers the obligation to use proper care to protect them from injury which it has reason to anticipate; and *709appellant was required, when it knew of appellee’s use of this passway, to warn him of the danger attending its use, and the jury were warranted in finding it guilty of negligence in leaving the hatchway open, unguarded, and unlighted under the circumstances. As appellee had passed over this way so often, and found it all right, in company with, or with the knowledge of, the mate, we do not see that, as .a matter of law, he was guilty of contributory negligence in assuming it was safe; and under the testimony the questions of negligence on the part of appellant and of contributory negligence on the part of appellee were properly submitted to the jury. Judgment affirmed.