The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-05-08
DECISIONS or THE HIGH COURT
ERRORS AND APPE AIS.
JANUARY TERM, 1867.
E. F. Dix, Captain,

This action was brought by the defendant
in error by Attachment against the steam
boat Hiawatha to recover tho value of o flat
boat and thirty cords Of wood, alleged to
have been lost to the defendant in error by
the improper conduct Of the officers Of the
| boat. fTHN
The declaration alleges in substance, that
the plaintiff in the action was the owner OF
wood yard on the Mississippi river, at
which he had q fatboat, loaded with fifty
cords Of wood, worth three dollars per cord,
the wood being piled in the boat on the
sweeps or oars used for it's navigation, as was
customary; that the Captain of the steam
boat agreed to purchase said wood and to
pay the plaintiff three dollars per cord for it,
and in order to receive it, to take the Hat
boat in tow of the steamboat up the river
and to transfer the wood to the steamboat;
that the fiat boat was accordingly taken in
tow for some miles up the river and part Of
the wood was delivered to the steamboat,
when the defendant suddenly refused to
take the remainder of the wood, and mali
ciously cast off the fiat boat from the steam
err whilst large portion of the wood was
piled up on the oars and sweeps, which left
the plaintiff utterly without the means Of
controlling the fiat boat; and left the boat
entirely subject to the current, and it was
the wood yard of the plaintiff, and was final
ly stranded on the other side of the river,
beyond the ability Of the plaintiff to recov-
or the boat with any means at his command;
and the boat and its contents were irrecOv-
erably lost to the plaintiff,
After the evidence was closed, the Court
instructed the jury at the instance of the
plaintiff; to which the defendant excepted;
and refused instructions asked BY the defend
ant to which he also excepted. After YER
dict for the plaintiff, the defendant moved
for new trial, because. i, The verdict was
contrary to law and the evidence 2. That
the defendants instructions were erroneous
ly refused. 3. That the Court erred in Civ
ing the plaintiff instructions. A. That the
verdict was excessive. This motion was
overruled and exceptions taken thereto.
The record contains the testimony of sew
eral witnesses on both sides, upon the points
whether the defendant was justfable or
not i'll refusing to take the wood from the
plaintiffs boat; or in casting off the boat
from the steamer in the manner in which it
was done; whether the plaintiff was excusa-
BILE or not for having the wood piled upon
tho oars SO that they could not be used in
navigating the boat when cast off, whether
in fact the oars were SO covered up, and
whether the boat might not have been got
to shore If the plaintiffs agents in charge of
it, had used the proper efforts within their
power. On these points the testimony is con-
hictiDg and unless there be error in the re-
cord in some other respect, we could not with
propriety say that the verdict is not correct.
But the record shows other evidence
touching the conduct of the plaintiff, after
his boat had drifted to the shore, which it is
material to take into consideration, with
reference to the value for which he
was entitled to recover, and with
reference to the instructions granted and
refused by the Court.
A witness for the plaintiff testified, tina
after the boat was cast off, it floated below
his woodward and landed on the opposite
side Of the river about half mile below a
point Immediately opposite his woodward,
where it was made fast that he told the
plaintiff the next day where she was, and
he said he would have nothing more to do
with her and would not bring her back ;
and that there would have been no difficult
ty in steamboat towing her up to plain
tiff's landing. The plaintiff testified that
he knew the next morning after the boat
was landed, that she was there that she
was worth 1920, and the wood $3 per cord
Henderson, witness for the defendant
testified that the plaintiffs boat lay on the
opposite side of the river about week, and
tow and to land it short distance above
the plaintiffs wood yard on the same side of
the river. There were twenty-seven cords
of wood on the boat at that time, which wit
ness sold to the steamer, which tOwed the
boat over, for $S1, which sum he holds to be
paid to the party entitled to it and that
when the boat was being towed over, and
past the plaintiffs -yard-some persons
in witness charge hailed the people at
plaintiffs woodward, and two persons came
up from the woodward and received the
boat The boat was then sound anddid not
leak, and was worth 5000.
The first witness for the plaintiff testified
that he afterwards saw the boat, in June
1860, six miles below, used as a wood boat.
Several grounds of error are insisted on,
in behalf Of the plaintiff in error but the
merits of the case, as it is now presented
may be sufficiently determined by consider
ing the instructions granted at the instance
of the plaintiff, and those asked in behalf
of the defendant and refused.
At the request of the plaintiff, the Court
gave the following instruction ITO con-
stitute delivery or tender of the boat and
wood, or either of them to the plaintiff, it
must be proved, in the case, that such de-
livery or tender was made either to the
plaintiff in person, or to some person proven
W bIl6 bdbISldCblOH VI jury W AdNO Dcoh
authorized by the plaintiff to act for him in
this matter"
This instruction proceeds on the idea that
the plaintiff had been illegally deprived of
the possession of his boat, or that it had
been illegally taken out of his possession by
the defendant for, upon no other view,
would the rules in relation to tender or re-
delivery, referred to in the instruction, have
been pertinent. But there is no evidence
lending TO show that the boat was ever in
he possession of the defendant, or was ever |
nut of the legal possession of the plaintiff; !
md, of course, the rule in relation to tender
" re-delivery of the possession to him, bad |
10 application to the case 1t was calcula-
ed to mislead the jury with reference to the |
fleet of the evidence, and it was error to
i've the instruction.
The following instructions, asked by the
defendant, were refused "If the boat and
wood were, by the proof, shown to have
een lost to Brown, only because he failed
O make any exertion to save them, and if
he proof shows that he could easily have
aved both, then the jury should not find
amages for the value of the boat and
rood"
"If the proof shows that the wood
oat and wood were safely landed by
he plaintiff at Black Hawk, and were then
ninjured, and plaintiff abandoned the boat
nd wood, and this when he could easily
ave recovered the boat and wood, then the
Try will find for plaintiff only such damages
5 he sustained by having his boat and wood
lrned loose, and the value of the wood la
en- by the Hiawatha out of the boat, and
lterest, and such further sum as would
ave compensated him for the labor ofre-
overing the boat and wood"
The former of these instructions appears
} look as well to the failure of the plaintiff
make any exertion to save the boat from
rifting past his woodward, before she
cached the shore, as to his failure to get her
ack after she was landed. The latter has
,ference to his conduct after the boat was
nded. They both present the question,
neither a party, who had been aggrieved
? the wrongful act of another, can recover
images to any extent which he could have
Toided by ordinary diligence.
The rule on the subject is thus stated by /,
aron Parke in Bridge VS.. The Grand juno
on Railway Company, 3 Mees g. Welsh, |
a. Although there may have been neg {
yence on the part of the plaintiff. yet, nm !;
IS be might, by the exercise of ordinary
re, have avoided the consequences of the :
PENDANTS negligence, he is entitled to re- |
yer; il, by ordinary care, he might have '
oided them, he is the author of his own 4
rong" And ordinary care" is said to be, !,
at degree of care which may reasonably l.
II l.. IL. r,1atwksHITa |