The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1872-09-20
Dis. Court, Me. Dis, Sept. Is, 1872.
THE JOHN RROOKS

Dis. Court, Me. Dis, Sept. IS, 1879.
THE JOHN BROOKS.
FO1 j. This steamer is one of the regular
line between this city and Boston, owned by
the Portland Steam Packet Company, daily
employed as a common carrier of freight and
passengers.
The lbellant is shipmaster, resident at
BoOthbay, in this district in command of a
ship, in the South American trade, owned by
X. Lewis and Co., of this city. He has testi-
fled as witness, and the Court is not aware
of any reason, either from his appearance or
the testimony in the cause, why his state
ments as to his loss should not be credited.
|. On the night of August Is, at Boston. he
took passage on this boat for Portland, payiug
at the captains Office $1.50 for his passage
and $500 for stateroom, the key of which
he received. No other person occupied the
stateroom with him. Soon after the steamer
left Boston, he went to his stateroom and de-
posted in the upper berth his overcoat and
then returned to the saloon, which extends
nearly the whole length of the upper deck,
and from which entrance is had to the state
rooms; the upper panel OF the stateroom
doors are of ground glass, through which light
from the saloon is obtained for the staterooms.
About nine the libellant returned to his state
room, and he swcars positively that he locked
the door, the lock being on the inside of the
door; but he admits that he did not bolt the
door, as he did not notice the bolt upon it.
He counted his money in the stateroom and
found he had 1906 in American currency,
and 50 or So in South American scrip. All
the money was placed in his wallet in the
pocket of his pantaloons, which before retir-
ing, he hung upon the clothes-hooks, fastened
for that purpose to the partition, he Sc
cured the window, which was found in rhat
condition the next morning. He occupied
the lower berth and fell asleep in about half
an hour, but was awoke in the
| course of the night, as he states. by
noise in the adjoining room, and being
afraid of robbers, he removed his pantaloons
from the hooks and threw them into the up-
per birth-after this he slept until the boat
arrived at Portland. On examining his
pantaloons, his wallet was gone, and the door
| of the room was unlocked with the kew in
| the lock, and although careful search was
made, no trace OF money or wallet could be
found, and as the company declined to make
him any restitution. he has instituted this
| proceeding, IN rem, for the recovery of the
money thus lost. The libelant states tlfat
the morning after the loss, the end Of the
| key of the stateroom showed signs of abra-
siOn,as by forceps, but in the trial the KEY was
produced and nothing of the kind could be
detected upon it by an experienced lock-
smith,
The answer denies all liability for money
retained by passenger about his person,
although he occupies stateroom, provided
for him by the boat as sleeping apartment.
| and secondly alleges that the negligence of the
| libellant was the cause of the loss, by his not
| bolting the door of his. .stateroom on retiring
| to rest.
1t is shown that there was suitable brass
I lock on the inside OF the stateroom door, in
| plain sight, on the white casing about five
| inches above the lock, which would have
] afforded protection against access to the
room if the libellant had made use of it,
which it is admitted by him he did not do, as
he did not notice it. Two gatchmen were on
duty in the saloon until ten O'Clock, at which
time all but one of the gas burners to each
chandelier in the saloon were extinguished,
leaving it light enough, however, to read in
the saloon, and at that hour most of the pas
sengers retired to their berths or staterooms,
and but one watchman was then kept on
duty in the saloon for the remainder of the
trip. The watchmen both testify that their
orders were to move around the saloon, keep
ing strict watch, and on this night they did
their duty, and no one, to their knowledge,
entered the stateroom of the libellant and that
duringa portion ftheir beat, they were not in
sight of the door.
The doctrine of the common law, as form
erly stated was, that the common carrier is
responsible for all losses, except those occa-
stoned by the act of God, or the Kings enc
mics, but this rule, in practice, has always
been understood not to cover any losses,
which arise from the personal neglect, wrong
or misconduct of the owner, or shipper of the
property, nor from damages arising from any
inherent defect in the article delivered to be
carried-Story ON Baiments 431
In Railway Co. u.s. Aspell, 2S Penn. State
r. 149: Black G. j., says: st has been
rule of law from time immemoria, and it is
not likely to be changed in all time to come.
that there can be no recovery from an injury,
caused by the mutual default of both parties.
When it can be shown that il would not have
happened. except from the culpable negli-
gence of the party injured, concurring with
that OF the other party, no action can be
maintained" p. 151. ga party
who violates a contract is not liable, any
more than one who commits tort for dam
ages which do not necessarily or Immediately
result from his own act or omission,-in nei-
ther case, is he answerable for the civil con-
sequences, which may be superadded, bv the
default or negligence or indiscretion of the
injured party, there is no form of action
known to the law land the wit of man can
not invent one) in which the plaintiff will be
allowed to recover for an act, not done or
caused by the defendant, but by himself.'
These remarks were made in case where
damages were sought to be named by a pas-
senger for personal injury sustained bv him.
whilst travelling on the the railroad, and are
understood to be correct exposition of the
rule OF law, relative to contributory negli-
gence, in all cases where damages are Claimed
from carrier, either for personal injuries Inv
the passenger or for the loss of his propertv
in charge of the carrier.
In "a New York r. III, ,Purvis us. Colman. il
is laid down that it is the well settled law of
New York.. that if plaintiffs negligence has
caused or contributed to the loss or injury,
an action against carrier cannot be main
tained /,
The tendency of the modern decisions is to
place the responsibility of inn-keepers, upon
the same grounds and to the same extent as
that ofcommon carriers, for it has been de-
cided in England, as well as by many of the
State courts in this country, tina an inn-keeper
although guilty of no negligence, is liable for
the loss or injury of the goods of his guests.
not arising from the negligence of the guest
the act OF God, or the public enemies. s B.
d G. Richmond uS Small.
The rule as declared by Erles in an g. d
800 Cashell Us. Wright, which was an act;on ~
against an inn-keeper Is, ''that an inn-keenar
Is liable as for breach of duty, unless the
negligence OF the guest occasioned the loss in
such way, as that the loss would not have
happened II the guest had used the ordinary
care that prudent man may be expected to
have taken under the circumstances
In "a Barbour 1888. FoMe Us. Davis, the
courts says, the im-keeper can repel the pre-
sumption OF liability. in case of loss, by showing
that the loss is attributable to the personal
negligence of the guest himself-gross negh-
gence ed not be shown-it is enough 10 ex-