Innis v. The Steamer Senator

By the Court,

Hastings, Ch. J. I think a new trial should have been moved for by the defendant’s counsel, and that without such motion made, and overruled, in no case should this court interrupt the verdict of a jury ; but this court, in several cases, myself dissenting, has determined otherwise. It appears that the ship liliods Island was freighted mainly with lumber, and moored near, if not in, the usual track, or in the line of steamers and other vessels entering the harbor, further down the bay than where vessels usually discharge—that she exhibited no lights,' and had no watch on her decks—that vessels on either side of her hoisted lights—.that in this harbor some vessels, when moored, set a watch and lights, and some do not. Upon the [460]question whether it is customary or required by prudence to set a watch or hoist lights, there was conflicting testimony. At the time of the collision the atmosphere was hazy, and the vessel was obscured by the shadows of the hills. It is not contended that the accident was wilful or was occasioned by the gross negligence of those in command of the steamer Senator, It appears from the testimony of several witnesses on the lookout at the time, that the collision was merely accidental, and could not be avoided after the lihode Island was first visible. The court gave nearly all the instructions asked on either side, there being twenty on the part of the defendant, which were all given but two.

It is contended on the part of the respondent, that the defendant cannot complain of the ruling of the court on these instructions ; and on the part of the defendant, it is said the giving of all the instructions asked on either side had a tendency to mislead and confuse the minds of the jury. It is evident that the instructions of the court were favorable to the defendant, and from the testimony of all the witnesses it is clear that the Rhode Island, moored where she was, without lights or a watch, was in fault; and, for the reason that the jury found against the instruction of the court, and against the evidence which clearly shows some negligence on the part of the Rhode Island, the verdict should have been set aside and a new trial granted. In the case of Simpson v. Hand, (6 Wharton's Rep. 324,) the court say, as contended by counsel, that “ a vessel is doubtless not bound “ to show alight when she is moored out of harm’s way, and that “ it was proved, in that case, to be a custom of the river, (Dela- “ ware,) in nights of unusual darkness, to set a light. The u lihode Island was not so moored, and no custom is so well “ established in this harbor as to be recognized as the law of the “ harbor.” I think the court should have instructed the jury that want of a light and a watch, in the position of the lihode Island, was such negligence on her part, as to prevent a recovery. In the case above cited, Chief Justice Gibsok says, “ Indeed, the hoisting of a light is a precaution so imperiously d demanded by prudence, that I know not how the omission of