§ 5. Action to recover damages for an injury to the plaintiff caused by the bursting of the boiler of the defendant steamboat, on which the plaintiff was a passenger. By the thirteenth section of the act of July 7, 1838 (5 Stats. at Large, 306), it is provided that in an action against the proprietor of a steamboat for an injury caused by the bursting of a boiler, etc., the fact of such bursting, etc., shall be taken as prima facie evidence sufficient to charge the defendant with negligence, until such presumption shall be rebutted. Held, that the evidence in the case failed to show that no negligence had been committed, and the defendant was liable for the injury. Steamboat New World v. King, SS 14-17.

§ 6. Any negligence in the care or management of steamboat boilers, for which skill is necessary, the probable consequence of which negligence is injury and loss of the most disastrous kind, is to be deemed culpable negligence, rendering the owners and the boat liable for damages, even in case of the carriage of a gratuitous passenger. Any negligence in such a case may well deserve the epithet of gross. (Re-affirming the principle in Reading R'y Co. v. Derby, 14 How., 386.) Ibid.

§ 7. Where it appears that it was customary for the masters of steamboats to permit persons whose usual employment is on board of such boats to go from place to place free of charge, and the usage is general and indirectly beneficial to the owner, the master has power to act under it and bind the owner; and a person who is thus accorded free passage under this custom is lawfully on board and entitled to damages if injured by negligence. Ibid.

§ 8. A lame boy, eight years old, got upon an engine. The engineer reversed and the fireman told the boy to hold on, and started to go forward to rescue him. But the boy let go, or was shaken off, got under the wheels and was injured. Held, that he was old enough and had experience enough to know better, and was guilty of contributory negligence. That in reversing the engineer was not guilty of contributory negligence, even though by so doing he jarred the engine so as to shake the boy off. Miles v. Receivers, §§ 18-22. [NOTES.- See §§ 23-92.]

RAILROAD COMPANY v. GLADMON.

(15 Wallace, 401-410. 1872.)

ERROR to the Supreme Court of the District of Columbia.

STATEMENT OF FACTS.- Action for damages against the Washington & Georgetown Railway Company for injuries to a child seven years old. The action was brought by the father. It appeared that the child attempted to cross the street in front of the horses; that the driver, at the time, was talking with a person who stood on the platform by him, and was not looking towards the horses at the time of the accident. There was a judgment for the plaintiff.

Opinion by MR. JUSTICE HUNT.

Sufficient proof was given to establish the negligence of the driver of the car, and no point is raised on that branch of the case. The alleged errors arise from the refusals to give certain instructions upon the effect of the conduct of the child, and of the charge as actually made on that subject. The first prayer for instructions is stated in the record in the words following:

"If the jury find from the evidence that the plaintiff's injuries resulted from his attempting to cross a street in front of an approaching car driven by an agent of defendants, the burden of proof is on the plaintiff to show affirmatively, not only the want of ordinary care and caution on the part of the driver, but the exercise of due care and caution on his own part; and if the jury find from the evidence that the negligence or want of due care or caution of the plaintiff caused the accident, or even contributed to it, or that it could have been avoided by the exercise of due care on his own part, then the plaintiff is not entitled to recover, whether the driver of the car was guilty of negligence or not, but the jury must find for defendant." $9. Contributory negligence need not be negatived by plaintiff.

As applied to adult persons the first branch of this proposition is not cor

rect.

While it is true that the absence of reasonable care and caution on the part of one seeking to recover for an injury so received will prevent a recovery, it is not correct to say that it is incumbent upon him to prove such care and caution. The want of such care, or contributory negligence, as it is termed, is a defense to be proved by the other side.

The plaintiff may establish the negligence of the defendant, his own injury in consequence thereof, and his case is made out. If there are circumstances which convict him of concurring negligence, the defendant must prove them, and thus defeat the action. Irrespective of statute law on the subject, the burden of proof on that point does not rest upon the plaintiff. Oldfield v. New York & Harlem R. Co., 3 E. D. Smith, 103; affirmed, 14 N. Y. 310; Johnson v. Hudson River R. Co., 20 N. Y., 65; Button v. Same, 18 id., 248; Wilds v. Same, 24 N. Y., 430. In the case of Oldfield v. The New York & Harlem Railroad Company, 3 E. D. Smith, 103, Denio, J., says:

"I am of opinion that it is not a rule of law of universal application that the plaintiff must prove affirmatively that his own conduct, on the occasion of the injury, was cautious and prudent. The onus probandi, in this as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts. Thus, if a carriage be driven furiously through a crowded thoroughfare, and a person is run over, he would not be obliged to prove that he was cautious and attentive, and he might recover, though there were no witnesses of his actual conduct. The natural instinct of self-preservation would stand in the place of positive evidence, and the dangerous tendency of the defendant's conduct would create so strong a probability that the injury happened through his fault that no other evidence would be required. The culpability of the defendant must be affirmatively proved before the case can go to the jury, but the absence of any fault on the part of the plaintiff may be inferred from circumstances; and the disposition of men to take care of themselves and keep out of difficulty may properly be taken into consideration."

The later cases in the New York court of appeals I think will show that the trials have almost uniformly proceeded upon the theory that the plaintiff is not bound to prove affirmatively that he was himself free from negligence, and this theory has been accepted as the true one. Generally, as here, the proof which shows the defendant's negligence shows also the negligence or the caution of the plaintiff. The question of the burden of proof is, therefore, not usually presented with prominence. In some of the states it has been held that the plaintiff was bound to make affirmative proof of his freedom from negligence. In many cases it is so held by virtue of local statutes. Shearman & Redfield on Negligence, §§ 43 and 44, and note, where the cases are collected.

§ 10. Contributory negligence cannot be imputed to a child of tender years. There is, however, another and very satisfactory reason for the refusal to comply with the prayer. The rule of law in regard to the negligence of an adult, and the rule in regard to that of an infant of tender years, is quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven, and

of a child of seven less than of one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case. Shearman & Redfield on Negligence, § 49; Mangam v. Brooklyn City Railroad, 38 N. Y., 455; O'Mara v. Hudson River R. Co., 38 N. Y., 445; Smith v. O'Connor, 48 Penn. St., 218; Pennsylvania Railroad v. McTighe, 16 id., 316.

The rule laid down in the request under consideration entirely ignores this difference. Assuming that it would have been a sound rule if the plaintiff had been an adult, it is evident that the jury would not have been justified in applying it in this case. That "due care and caution" required of plaintiffs generally was not required of the plaintiff here. If it had been given as requested, the instruction would have been quite certain to mislead the jury to the prejudice of the plaintiff. It was properly refused.

§ 11. Instruction must not assume unproved facts.

The instruction asked for in the second prayer, and which the judge refused to give, was as follows:

"2. If the jury find that the plaintiff negligently or rashly attempted to cross the street in front of the car, but his injuries resulted from his having accidentally slipped and fallen on or near the track when endeavoring to turn back when it was too late to stop the car, it is to be regarded as an inevitable accident, for the consequences of which the defendant is not responsible."

The suggestions already made are applicable to this request. The circumstances that the plaintiff was an infant of tender years, and that a different rule was required in that case from the rule in the case of an adult, was excluded from the proposition. A charge in accordance with the prayer could not, therefore, have been properly made. The prayer also assumed as existing facts of which no proof is found in the record. I do not find any evidence of the fact here assumed, that, when the plaintiff slipped or fell, it was too late to stop the car. The evidence on that subject comes from the witness who testified in substance that if the driver had been attending to his duty he could have checked his horses in time. This witness gave the only evidence on the point. It is not allowable to assume, as existing, facts not proved, and to ask a direction to the jury upon such assumption. This practice would tend to embarrass and mislead the jury.

The third and fourth prayers are of the same general character and do not require more particular consideration.

Exception is also taken to certain portions of the charge. The general scope and tendency of the charge is correct. The rule in regard to the liability of the defendant under the circumstances submitted to the jury is correctly given. The language is less simple, perhaps, than might have been desired, and detached sentences might be open to criticism, but upon the whole it is right, and the jury could not have failed to understand it correctly. Some discussion was had upon the argument on the point of the degree of care and attention to be required of those having the charge and custody of an infant of tender years. This presents an interesting question, which, when it is properly before us, will receive the careful attention of the court. In the present case it does not appear to have been presented to the court below, and there is nothing in the evidence to justify this court in now considering it. Upon the case as it comes before us the judgment must be affirmed.

39

ROSE v. STEPHENS & CONDIT TRANSPORTATION COMPANY.

(Circuit Court for New York: 11 Federal Reporter, 438-440. 1882.)

Opinion by Wallace, J.

STATEMENT OF FACTS.- The plaintiff was injured by the explosion of a steam boiler which was being used by the defendant to propel a vessel chartered by the defendant to others to be used for the transportation of passengers and freight. If the explosion resulted either from the carelessness of the employees of the defendant in charge of the boiler, or from the negligence of the defendant in sending forth an unsafe and dangerous boiler to be used where human life would be endangered if the boiler should explode, it is conceded the defendant was liable.

§ 12. Presumption of negligence from explosion of boiler. on defendant.

Burden of proof

It is contended, however, that it was error to instruct the jury that they might infer such negligence from the fact of the explosion; and it is argued that such a presumption only obtains when the defendant is under a contract obligation to the plaintiff, as in the case of a common carrier or bailee. Undoubtedly the presumption has been more frequently applied in cases against carriers of passengers than any other class, but there is no foundation in authority or in reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such as, in the ordinary course of things, does not take place when proper care is exercised, and is one for which the defendant is responsible. It will be sufficient to cite two cases in illustration of the rule, without referring to other authorities.

In Scott v. London & St. Catherine Dock Co., 3 Hurl. & C., 596, the plaintiff, as he was passing by a warehouse of the defendant, was injured by bags of sugar falling from a crane by which they were lowered to the ground. The court said there must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. This case is cited with approbation in Transp. Co. v. Downer, 11 Wall., 129.

In Mullen v. St. John, 57 N. Y., 567, the plaintiff, who was upon a street sidewalk, was injured by the fall of an unoccupied building owned by defendant; and it was held that, from the happening of such an accident, in the absence of explanatory circumstances, negligence should be presumed and the burden cast upon the owner to disprove it.

In the present case the boiler which exploded was in the control of the employees of the defendant. As boilers do not usually explode when they are in a safe condition, and are properly managed, the inference that this boiler was not in a safe condition, or was not properly managed, was justifiable, and the instructions to the jury were correct.

The other questions which are presented upon the motion are not sufficiently serious to deserve extended comment. The instructions to the jury must be considered in their integrity, and not in isolated parts, and so considered present the law of the case fairly and correctly. The evidence amply justified

the jury in the conclusion that the defendant had not made such an examination of the boiler as prudence required, preparatory to its employment for the season of 1878, and which, if made, would have revealed the defect.

§ 13. When a new trial will not be granted for alleged excessive damages. The verdict undoubtedly awarded the plaintiff liberal damages for the injuries he sustained, but it is very difficult to measure the compensation which a party should receive for such acute suffering as the plaintiff experienced. Certainly the verdict is not so obviously extravagant as to indicate prejudice or partiality. The motion for a new trial is denied.

STEAMBOAT NEW WORLD v. KING.

(16 Howard, 469-479. 1853.)

Opinion by MR. JUSTICE CURTIS.

STATEMENT OF FACTS.- This is an appeal from a decree of the district court of the United States for the northern district of California, sitting in admiralty. The libel alleges that the appellee was a passenger on board the steamer, on a voyage from Sacramento to San Francisco, in June, 1851, and that, while navigating within the ebb and flow of the tide, a boiler flue was exploded through negligence, and the appellee grieviously scalded by the steam and hot water. The answer admits that an explosion occurred at the time and place alleged in the libel, and that the appellee was on board and was injured thereby, but denies that he was a passenger for hire, or that the explosion was the consequence of negligence. The evidence shows that it is customary for the masters of steamboats to permit persons whose usual employment is on board of such boats, to go from place to place free of charge; that the appellee had formerly been employed as a waiter on board this boat; and just before she sailed from Sacramento he applied to the master for a free passage to San Francisco, which was granted to him and he came on board.

It has been urged that the master had no power to impose any obligation on the steamboat by receiving a passenger without compensation.

But it cannot be necessary that the compensation should be in money, or that it should accrue directly to the owners of the boat. If the master acted under an authority usually exercised by masters of steamboats, if such exercise of authority must be presumed to be known to and acquiesced in by the owners, and the practice is even indirectly beneficial to them, it must be considered to have been a lawful exercise of an authority incident to his command.

14. A steamboat man by custom permitted to travel free on boats is lawfully on board and entitled to damages if injured by negligence.

It is proved that the custom thus to receive steamboat men is general. The owners must therefore be taken to have known it, and to have acquiesced in it, inasmuch as they did not forbid the master to conform to it, and the fair presumption is that the custom is one beneficial to themselves. Any privilege generally accorded to persons in a particular employment tends to render that employment more desirable, and, of course, to enable the employer more easily and cheaply to obtain men to supply his wants.

It is true the master of a steamboat, like other agents, has not an unlimited authority. He is the agent of the owner to do only what is usually done in the particular employment in which he is engaged. Such is the general result of the authorities. Smith on Mer. Law, 559; Grant v. Norway, 10 Com. B.,