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the action, it is not necessary that he should have been thrown off the coach; it is sufficient if he were placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was occasioned by the fault of the defendant the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover.

The instruction which we are now considering is framed in the spirit of the principle which we have just stated, and we think it wholly unexceptionable.

The fourth instruction which was given to the jury was in favor of the defendant, now plaintiff in error, and therefore need not be considered. Upon the whole, we think that there is no error in the judgment. It is therefore atfirmed, with costs.

DUNLAP v. STEAMBOAT RELIANCE.

(Circuit Court for Georgia: 2 Federal Reporter, 249-254. 1880.)

Opinion by Woods, J.

STATEMENT OF Facts.— The Reliance was a passenger and freight steamboat, making regular trips by the middle route between Jacksonville, Florida, and Savannah, Georgia. On September 3, 1878, about 10 o'clock P. M., she left Jacksonville, bound for Savannah. On the trip the libelant was a pay passenger. Between 11 and 12 o'clock on the night of that day, as the Reliance was going up the St. Mary's river, one of her boilers exploded. The result of the explosion was to throw overboard her other boiler and to break in the lower forward saloon.

At the time of the explosion the libelant was sitting on the port side of the upper deck. He was thrown upwards by the explosion and fell upon the deck ten or twelve feet from where he had been sitting at the time of the explosion. His right leg was broken at neck of the trachanter, and his elbow and hand were bruised. He was taken to a hospital in Savannah for treatment, and for weeks suffered great pain from his injuries. As a result of the fracture he was crippled for life, his injured leg being shortened about an inch and a half.

The libelant was an Episcopal clergyman, and at the time of his injuries aged thirty-seven years, and was of sound bodily health. At the time of the explosion William Moultrie, first engineer of the boat, was in charge of the engine; he was killed by the explosion; he went on duty at 6 o'clock that evening. Mark Davis was fireman on duty at the same time.

John Sherman was second engineer, and was relieved by Moultrie at 6 o'clock. When Moultrie relieved him he told Sherman that when the latter came on watch again that night he should keep a strict lookout for everything, and to be sure to keep his eyes on the pump and to see that it continued to work. At the time of the explosion, Moultrie, the engineer, was in his usual position, in full view of the glass and water-gauges. The explosion was preceded by a humming or whistling noise, and water and ashes came from under the port boiler and were blown forward.

The testimony touching the character of Moultrie, the engineer on duty when the explosion took place, was conflicting; some of the witnesses spoke of him as a sober, careful and competent engineer, and very faithful and attentive to his duties. One witness, however, stated that about two weeks before the explosion he saw him on the wharf at Savannah, while the boat was getting up steam, so drunk as to be unfit to run an engine in any steamer. The witness said he spoke to Mr. Benson, the agent of the boat, about the condition of Moultrie at that time, and Mr. Benson said the company intended to get rid of him as soon as possible.

The evidence showed that the boilers and machinery of the boat vere in good order and repair just before the explosion. The boilers had been repaired and inspected in August preceding, and a short time before the trip on which the explosion occurred had been cleaned out, and were apparently sound and good. The pump was a good one, and had never been known to fail.

There was a glass water-gauge, and there were water-cocks for ascertaining the quantity of water in the boilers. The evidence showed that it was necessary to try the water-cocks, as well as to examine the glass water-gauge, in order to ascertain the height of the water in the boilers; that it was not prudent to rely entirely on the glass water-gauge, which was likely to choke up and deceive the engineer. There was some conflict in the evidence whether it was customary on the boat to test the water by the water-cocks.

After the explosion a piece of the bottom of one of the boilers was found in the boat. It was hard and brittle, and broke under the shears. Its tensile strength had been lost to the extent of five or six thousand pounds by being heated and chilled. It had been burnt by fire. It was in evidence that it was the duty of an engineer to prevent the burning of his boilers, and that when they were allowed to burn there was a presumption of negligence.

The Reliance was allowed to carry eighty pounds of steam, but she not unfrequently carried from eighty-two to eighty-three pounds, and it was often necessary for her to carry this amount to make up her time. Just before the explosion the steam-gauge in the cabin indicated a steam pressure of seventytwo pounds.

The libelant was without fault, and his injuries were received without any negligence or carelessness on his part.

$ 192. Liability of carriers of persons.

The carriers of passengers are not insurers of the safety and lives of those whom they carry. Ang. on Car., $ 536; 2 Greenl. on Ev., $ 222; Christie v. Griggs, 2 Camp., 79; Israel v. Clark, 4 Esp., 259; Aston v. Heaven, 2 Esp., 533; Meir v. Penn. R. Co., 64 Pa. St., 225; McPadden v. N. Y. Cont. R. Co., 44 N. Y., 478; Daniel v. Metropolitan R. Co., L. Rep., 5 H. L., 45. Nevertheless, a carrier of passengers is bound to exercise the utmost knowledge, skill and vigilance to carry his passengers in safety. Curtis v. The Rochester & Syracuse R. Co., 18 N. Y., 543; Steamboat New World v. King, 16 How., 469 (SS 14-17, supra); Stokes v. Saltonstall, 13 Pet., 181 (S$ 189-91, supra). In the last case cited the supreme court says: “It is certainly a sound prin

a ciple that a contract to carry passengers differs from a contract to carry goods. For the goods the carrier is answerable at all events, except an act of God and the public enemy. But, although he does not warrant the safety of the passengers at all events, yet his undertaking and liability as to them go to this extent: that he or his agent, if he acts by an agent, shall provide competent skill, and that, so far as human care and foresight can go, he will transport them safely."

$ 193. Prima facie evidence of negligence.

The explosion of the boiler, and thec onsequent injuries to the libelant, are, of themselves, prima facie evidence of negligence.

In Christie v. Griggs, 2 Camp., 69, Sir James Mansfield, chief justice, said: "I think the plaintiff has made a prima facie case by proving his going in the coach, the accident, and the damage he has suffered. When the breaking down or overturning of the coach is proved, negligence on the part of the owner is implied."

This case is cited with approbation by the supreme court in Stokes v. Saltonstall, supra; in Railroad Company v. Pollard, 22 Wall., 311. The case of Stokes v. Saltonstall, 13 Pet., 181, was approved, and it was declared that in a suit against a railroad company for an injury to a passenger, if it appeared that the passenger was in the exercise of that degree of care which might be reasonably expected from a person in his situation, and injuries occur to him, this is prima facie evidence of the carrier's liability.

In the present case, where the injury was caused by the explosion of the boiler of the steamboat, while the same was in charge of the servants of the boat, there can be no question that the explosion itself inakes out a prima facie case of negligence, and, unless this presumption is rebutted, entitles the libelant to recover.

The question for decision upon the facts is, therefore, has the respondent rebutted this presumption? The proof shows that the boilers of the Reliance and her machinery were in good order. The boilers had been recently repaired and had been inspected by one of the government inspectors at Savannah, and had been cleaned out a short time before. At the time of the explosion there were no defects apparent in the boat, her boilers or machinery.

The explosion must, therefore, have been caused either by some latent defect which the closest examination could not discover, or by the negligence of those in charge of the boilers and inachinery, and it is incumbent on the respondent to show that the disaster was caused by the former and not by the latter.

There is no direct proof whatever that there was any defect in the boiler or machinery of the boat to which the explosion could be attributed. The respondent, however, seeks to draw the inference that there was such defect from the proof tending to show the good character of the engineer for sobriety, skill and attention to his duties, and from the fact that just before the explosion he was at his post apparently attending to his duties; but there is evidence on the record tending to rebut this proof of the respondent. It is shown that the engineer was not always sober, and there is evidence tending to show that the glass gauge was relied on to ascertain the height of water in the boilers, and that the water-gauge cocks were not used for that purpose. This, according to the evidence of the government inspector, would be negligence, because a glass gauge is likely to choke up and deceive the engineer.

, But the fact which, to my mind, rebuts the inference to be drawn from the alleged good character of the engineer, and his attention to his duties, is found in the condition of that part of the boiler which was left in the boat after the explosion. The government inspector says, in reference to this fragment of the boiler: "I examined it with Mr. Henderson. We had it cut, but did not

: cut the worst part of it, as we desired to keep it for further information. The piece we had cut was hard and brittle and it broke under the shears; its tensile strength had been taken away to the extent of about five or six thousand pounds by being heated and chilled; it had been burned by fire.”

This witness adds: “It is an engineer's duty to prevent the burning of the boilers, and the presumption is that when they do burn it is negligence.” On this point Sherman, the second engineer, says: “I would consider it great carelessness to let your boiler burn; it could not happen without great carelessness."

The respondent claims that the piece of the boiler found on the deck might have been burned after the explosion by the fire left in the furnace. This is mere conjecture, without any evidence to support it, and the result of the explosion, as disclosed by the evidence, renders such a theory extremely improbable. This evidence makes it perfectly clear that the boilers of the boat were not in a sound condition at the time of that explosion, and that their unsafe condition was due to the carelessness of the engineers, or one of them. It may have been owing to the carelessness of Moultrie, the engineer on duty at the time of the explosion, or of the second engineer, Sherman, who admitted after the disaster that it was not his habit to try the water-gauge cocks, and who for this negligence has had his license revoked.

It is also in evidence that the boat very frequently carried more passengers than she was allowed to. With all this testimony touching the management of the boat by her engineers and the condition of the boilers at the time of the explosion, we are asked to find that the explosion was caused by some hidden defect in the material out of which the boilers were constructed, and not to defects caused by carelessness and bad management. No hidden defect is shown to exist, and we are asked to infer it from the good character of the engineers. The facts prove that the engineers were careless and negligent, and the result of that negligence is shown by the condition of the boilers at the time of the explosion. The natural and almost unavoidable inference is that the explosion was the result of the bad treatment of the boilers by the engineers, and not the result of some concealed flaw.

In my judgment the presumption of negligence arising from the fact of the explosion is not removed, but is greatly strengthened, by the evidence in the case, and the libelant must have a decree for the damage that he has sustained.

Upon the facts, as disclosed by the evidence, I estimate his damage at $5,000, and direct a decree in his favor against the boat for that sum, and costs, both in this court and in the district court.

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FLINT v. THE NORWICH & NEW YORK TRANSPORTATION COMPANY.

(Circuit Court for Connecticut: 6 Blatchford, 158–165. 1868.)

Charge by SHIPMAN, J.

STATEMENT OF Facts.— There are a number of facts touching this interesting and important case which is now finally to be submitted to you, about which there is no serious dispute. The plaintiff, a physician, residing in Boston, left his home for New York on the 6th of June, 1864. Before leaving he purchased a through ticket, called a coupon ticket, by which he became entittled to a passage from Boston to Worcester over the Boston & Worcester Railroad; from Worcester to Norwich over the Norwich & Worcester Railroad; from Norwich to New London over the Northern Railroad; and from New London to New York, through the Sound, on one of the defendant's passenger boats. He passed safely over the route from Boston to New London, where he arrived not far from half-past 10 or 11 o'clock in the evening, left the cars and proceeded on board of the defendant's boat, the steamer City of Boston, which was then lying at the dock with steam up, ready to start as

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soon as the passengers by the train, with their luggage, and some express freight should be taken on board. The plaintiff, with other passengers, one of whom was a lady under his charge, went upon the main deck of the steamer, through her after starboard gangway. He proceeded with the lady through or along with a crowd of passengers, passed up the stairs to the upper saloon, and after some little time, leaving the lady, returned to the main deck and went to the ticket-office to receive his state-room key to which his ticket entitled him. He obtained the key and proceeded to return from the ticketoffice to the upper saloon by the proper route. When he had gone a short distance from the ticket-office and before he had reached the stairs, a loaded musket fell from the hands of a soldier or non-commissioned officer, or was thrown down, and was discharged as it fell, and the ball passed through the foot of the plaintiff, just back of the toes, shattering the bones and causing a dangerous wound from which he suffered severely for a long time. Finally, to save his life, as advised by his surgeons, he was compelled to have his foot amputated. He suffered for a period of nearly three months, and incurred expenses in a city distant from his home. His activity and capacity for business and professional usefulness have been more or less permanently impaired. He claims that this injury, with all its serious consequences, was the result of a breach of duty on the part of the defendants, and to recover proper damages therefor he has brought this suit. The burden of proof is on the plaintiff, and it is now for you to say whether or not, on the whole evidence, the claim of the plaintiff is well founded. The rules of law which you are to apply as tests to this evidence I will refer to particularly hereafter.

$ 194. The duty of a common carrier of persons for hire to maintain order on his vessel and protect passengers from violence at the hands of other persons on the vessel,

As I have already stated, before the arrival of the train which brought the plaintiff to Now London, the steamboat was at the dock, with steam up, ready to start, when the passengers, the luggage and the express freight from the train should all be on board. She had been lying there for some time. Between 9 and 10 o'clock, an hour or more before the train arrived, a detachment of United States soldiers, from Fort Trumbull, about sixty-three in number, with several non-commissioned, and two commissioned, officers, went on board, and were there when the train arrived. Some fourteen to eighteen of these soldiers were armed with muskets, loaded and capped, and furnished with bayonets. They were detailed as guard over the rest, who were unarmed. Witnesses called by the defense state that this detachment was placed on the main deck, forward of the engine-room; that armed sentries were stationed to keep them there; that a sentry was placed on each side of the engine-room to prevent them from going aft; and that two sentries were stationed at the forward starboard gangway, and one at the head of the stairway leading from the forward part of the main deck to the cabin below. Some of these witnesses say that a sentinel was also placed at each of the two ladders which led from the forward part of the main deck to the saloon deck above. This was substantially the condition of things on the boat down to, or near to, the time when the train which brought the plaintiff arrived. On this train came a large number of passengers, among whom were about one hundred and fifty soldiers, in a detachment, under the command of officers, and who were ultimately marched on board at the forward gangway. By the same train came also about a dozen or twenty soldiers, traveling, apparently, as ordinary pas

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