Bequette v. Peoples' Transportation Co.

The absence of care on the part of the plaintiff, contributing to the injury, but not amounting to a want of ordinary care, will not excuse gross negligence in. the defendant.

Appeal from Marion County. This action was brought in the Circuit Court for Marion county, to recover the value of a flat boat and skiff, which plaintiff alleged had been destroyed while lying at the bank of the Willamette river at Fairfield, through the carlessness of defendant’s agent in the management of its steamer, the Fannie Patton. In answering, the defendant denied the allegation of negligence, and averred negligence on the part of plaintiff as the. cause of injury. The replication denied this averment of negligence. Defendant’s counsel asked the court below to give the following instructions to the jury : 1st. “ That unless they find from the evidence that the plaintiff was free from any negligence, without which the injury alleged in plaintiff’s complaint would not have happened, the greatest negligence on the part of defendant will not entitle plaintiff to recover.” 2d. “ That the least negligence on the part of the plaintiff contributing to the injury is a bar to the recovery by plaintiff, and entitles defendant to a verdict of no cause of action. These instructions the court refused, but instructed the jury “ that some negligence on the part of plaintiff in fastening his boats in an exposed position would not excuse gross negligence of defendant in running into and destroying the same.” Defendant appealed from judgment for error by the court. as to both points, cites: Wiles v. Hudson, R. R., 24 N. Y., 480; Haley v. Earle, 30 N. Y, 208; Wiles v. Hudson R. R., 29 N. Y., 315; Ernst v. Hudson R. R., 24 How. P. R., 97; Sedgwick on Dam., 493, 468; Catawissa R. R. Co. v. Armstrong, 49 Penn., 186; Wright v. M. & M. R. R. Co., 4 Allen, 283; Timmons v. Central O. R. R. Co., 6 Ohio, 105, and other cases. cite as to first point: Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio, 172; Birge v. Gardner, 19 Conn, 507; Beers y. Housatonic R. R. Co., 19 Conn., 566. As to second point: Fero v. Buffalo & S. L. R. R., 22 N. Y., 209; Cook v. Cham. Tr. Co., 1 Denio, 91; 4 Abb. N. Y. Dig., 118; Carroll v. N. Y. & H. H. R. R. Co., 1 Duer, 571; 3 Ohio, 172.