Brown v. Gilmore

1. The state courts have jurisdiction of admiralty cases where the action is in personam, and not in rem, whether the action is one of contract or sounding in tort. 2. The test is whether the common law gives to a suitor the right of a common-law remedy to redress the wrong which he has suffered. Whenever it does the party injured may maintain such action in a state court. 3. As a general rule the burden of proof of want of ordinary care rests on the party alleging it, and when therefore plaintiffs alleged an injury on the part of defendants, an act done by plaintiffs to prevent the injury, and which was not shown to have caused any damage, did not impose on plaintiffs a necessity to prove that it did not contribute to the loss. 4. In an action to recover damages for a loss resulting from a collision of two tug-boats and their fleets, it was shown that the collision arose from the negligence of defendants, but it appeared that by reason of'a broken shaft the tug-boat of the plaintiffs was not able to manage its tow, and that by reason thereof, the tow was stranded and a portion of it lost. Held, that if plaintiffs used due and proper diligence to secure and protect the property, the resulting loss was not too remote to prevent a recovery therefor. 5. The barges which comprised the tow were laden with coke. Held, that considering the character of the property and the fact that it was on its way, with other coke, to market, its value at the nearest'market, deducting therefrom the time and expense in making that market, was a correct measure of damages. ' 6. The allegata and the probata did not agree, but the evidence received was clearly relevant to the general complaint of the loss. No objection was made to the admission of the evidence, and no request to withdraw it from the jury. The court refused to instruct the jury that there could be no recovery. Held, that this was not error as the declaration could have been amended so as to make the evidence clearly admissible.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, Nos. 261 and 311. Case by John Gilmore against Samuel Brown and others, and by Henderson & Co. against same defendants, to recover damages for the loss of certain barges and the coke, which composed the cargo therein, alleged to have been caused by the negligence of defendants in the management of the steam-tug Bigley, of which they were the owners. These two cases were tried together in the court below as they involved the same state of facts and nearly the same principles of law. The Gilmore case was brought by the owner of the steam-tug Phillips and certain coal and coke barges, and the Henderson case was brought by the owner of the coke and coal laden in the Gilmore barges, and both against the owners of the steam-tug Bigley, to recover for damages caused by a collison between the two tugs on the Ohio river in September 1876. The declaration in the Gilmore case, as amended, alleged that the plaintiff being the owner of a fleet of barges, viz.: nine barges laden with coal and coke moored in the Ohio river at a place called Merriman, the defendants, by neglect and carelessness of their employees in the navigation of their steam-tug Bigley, ran foul of and struck against the said fleet of barges and broke, damaged and injured the same. In the Henderson case, plaintiffs, in their narr., alleged that they owned a quantity of coke laden in certain barges of John Gilmore, and then being towed down the Ohio river from the city of Pittsburgh; that the steam-tug Bigley, owned by defendants, with her tow of barges, by negligence, had collided with and run into the Gilmore barges, and stove, wrecked and broke the same, thereby causing loss of the coke.,,. The facts were as follows: The steam-tug Phillips having broken one of her shafts, was lying at shore near Merriman’s shoals in the Ohio river. When, early in the morning of September 12th 1876, the Bigley and tow, in a heavy fog, came to land just above her, both the boats having their bows down steam — the trees to which the Bigley was made fast pulled out, and while endeavoring to back out into the stream, the foremost barge of the Bigley’s tow got foul of the wheel of the Phillips, having failed to clear it by about three feet in turning. The momentum of this collision caused the Phillips to move out — one of the lines holding her tow to shore was parted, the other was cut by the captain, and the whole tow drifted down and was stranded upon a dangerous bar just above which she had been moored. Some of the barges were gotten off, but others remained until a sudden rise in the river, about a week afterwards, wrecked and ruined them. Upon the trial, before Collier, J., a large amount of testimony was given upon the question as to negligence upon the part of defendants’ employees, and as to contributory negligence on the part of plaintiffs. There were two verdicts for the plaintiffs, amounting in the aggregate to $>7800, and after judgments thereon, the defendants took these writs. The following assignments of error will show the various questions raised in the case: 1. The court erred in refusing to affirm defendants’ first point, viz.: That in cases of collision between steamboats while navigating the Ohio river, the respective claims and liabilities of the parties owning or navigating said boats, for damages caused by such collision, present a cause of admiralty jurisdiction vested exclusively in the courts of the United States, and of which by the constitution and laws of the United States, the state cannot take cognisance. Ans. “Refused.” 2. The court erred in refusing to affirm the seventh point of defendants, as follows: If the jury find that the loss might have been avoided, even after the collision, had those in charge of the Phillips not cast off the lines by which they were held to the shore, the verdict should be for defendants [and plaintiff must satisfy the jury that casting off the lines did not contribute to the loss]. Ans. “ Affirmed, if the jury find the facts as stated in this point, except the part in brackets, which is .refused.” 3. The court erred in its answering the defendants’ eighth and ninth points, as follows : 8th point. That even if the jury find that the striking of the Phillips’s wheel was occasioned by the negligent act or default of defendants’ employees, and yet that the subsequent stranding of the Phillips’s tow was owing to her inability to manage her tow in consequence of her broken shaft, the loss resulting from such stranding was too remote a consequence of defendants’' negligence, and cannot be recovered in this action. Ans. “ Refused.” 9th point. If the foregoing point be refused, then, that under the same facts, if found by the jury the loss of the three barges by the sudden rise of the river, several days after the collision, was too remote a consequence of the collision, and defendants would not be liable for such loss. Ans. “ Affirmed, unless you find that the plaintiffs used due and proper diligence in the meantime.” 4. The court erred in its answer to plaintiffs’ second point, and to defendants’ eleventh point, as follows : Plaintiffs’ 2d point. That the measure of damages is the value of the coke lost, and the damage done to the coke saved after the collision, at the nearest market for coke, considering the character of the river and navigation, with interest thereon from the date of the loss and damage, deducting the time and expense required to reach that market. Ans. “ Affirmed.” Defendants’ 11th point. That in cases of collision between steamboats, it is the actual damage sustained by the party at the time and place of injury that is the measure of damages. [And if defendants are liable at all for the value of property lost or destroyed, they are liable only for the value of such property at the port of shipment, with the additional allowance of the expenses of reaching the point of loss.] Ans. “ Affirmed, except as to the coke. The part in brackets is refused.” And in charging the jury as follows : “ Whatever was the real market value of the coke — not the retail market value — together with what it would cost to get it there (Wheeling), Henderson et al. would be entitled to.” 5. The court erred in instructing the jury as follows: “The owner of the boat, Gilmore, would be entitled to every dollar he lost directly, and to all the money he expended in and about the barges trying to save and take care of them, with interest.” 6. The court erred in refusing to charge the jury as requested in defendants’ 12th point, as follows: If the jury find that the actual collision which took place was merely the striking of the extreme point of defendants’ tow, when swinging round in order to back out, against the wheel of plaintiffs’ boat, the Phillips, as she laid tied to shore, causing thereby no damage to the wheel or boat, but simply forcing her from her moorings into the river, and that in consequence of the broken shaft of the Phillips, she was unable to manage her tow, which stranded on the shoal below, and that the actual loss did not take place till several days afterwards, when the barges were wrecked and wholly destroyed by a sudden flood, the plaintiffs cannot recover for the loss of such barges, for the reason that no such cause of action is set forth in the declaration, even if the alleged injury was not too remote from its alleged cause.” Ans. “Refused.” 7th. The court erred in not allowing defendants’ motion in arrest of judgment for want of jurisdiction.