Carson v. Leathers

1. Instructions. As in case of nonsuit. When granted. An instruction to find for the defendant, if the jury believe all the evidence, is proper only where all the facts in evidence being taken as true, every just inference from them fails to maintain the issue, the conflict being resolved most favorably for the plaintiff. 2. Common Carriers. Steamboat. Landing passengers. The owner of a steamboat, the custom on which is to notify passengers when their landings are reached, is liable- for the negligence of its clerk in directing a lady, who has placed herself in his care, to disembark at night at the wrong landing, and for that of persons to whom the clerk has deputed the performance of this duty.

Error to the Circuit Court of Warren County. Hon. Upton M. Young, Judge. The instruction that the jury should find for the defendant, if they believed all the evidence, was erroneous. Whitney v. Qoolc, 53 Miss. 551; Qooley v. O'Connor, 12 Wall. 391; Dralcely v. Gregg, 8 Wall. 242; Hickman v. Jones, 9 Wall. 197 ; G-reenleaf v. Birth, 9 Peters, 292; Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Fim Steinburg, 17 Mich. 99; Conely v. McDonald, 8 Cent. Law Jour. 229. Whether the evidence tending to maintain the issue is weak or strong, it is the right of the jury to pass upon it. In cases of negligence that rule is peculiarly applicable. Gaynor v. Old Colony Railroad Co., 100 Mass. 208; Ireland v. Oswego Plank Road Co., 3 Kernan, 526 ; Keller v. New York Central Railroad Co., 24 How. Pr. 172; Kenworthy v. Ironton, 41 Wis. 647; Chicago Raihoay Co. v. Scates, 90 Ill. 586 ; Craig v. New York Railroad Co., 118 Mass. 431; Carland v. Young, 119 Mass. 150 ; Thurber v. Harlem Bridge Railroad Co., 60 N. Y. 326; Gower v. Chicago Railway Co., 45 Wis. 182 ; Shearman & Redfield on Negligence, § 11, p. 13, and notes 1, 2 ; Proffatt on Jury Trial, §§ 295-298, and notes. The matter is thoroughly discussed in Cooley on Torts, 666-671. Negligence is always a question for the jury, when the measure of duty is ordinary and reasonable care. Crissey v. Kestonville Railway Co., 75 Penn. St. 83; West Chester Railroad Co. v. McRlwee, 67 Penn. St. 311. As to minors and female passengers, carriers by water sustain a relation different from that sustained by land carriers. The master of the ship or steamboat stands in loco parentis towards ladies, who are comparatively helpless and liable to imposition. Thurber v. Harlem Bridge Railroad Co., 60 N. Y. 326 ; Redf. on Carriers, § 357 ; Chamberlain v. Chandler, 3 Mason, 242; Smith v. Wilson, 31 Plow. Pr. 272; Hutch, on Carriers, §§ 631, 632. The usages'of polite society demand, and it is the custom on steamboats, and on this particular boat, for the clerk to see ladies off at their proper landings, and Mrs. Carson had a right to rely upon a performance of that custom and duty. Shearman & Redfield on Negligence, § 278. He neglected that duty, and delegated it to O’Kelley, who, thinking the boat had landed at Palmyra, took Mrs. Carson ashore. By the clerk’s requesting O’Kelly to perform this duty for him, the defendant, Leathers, became responsible for the wrongful landing of Mrs. Carson. Shear-man & Redfield on Negligence, § 70; Wood’s Master and Servant, § 308. made an oral argument. The evidence wholly fails to make out the plaintiffs’ case. It does not tend in any legal view to establish it. The duty of the court was therefore to give the charge complained of. Perry v. Glanrke, 5 How. 495 ; Frizell v. White, 27 Miss. 198; Garnett v. Kirkman, 33 Miss. 389. The rule also prevails in the Federal courts. Pleasants v. Fant, 22 Wall. 116. It is an important power in this State, and should be used to prevent verdicts dictated by ignorance or prejudice, for after two such “ idle ceremonies ” the statute prohibits another trial. Code 1871, § 647. In Wilds v. Hudson River Railroad Go., 24 N. Y. 433, the Supreme Court of New York repudiate the doctrine that because a case involves negligence it must be submitted to a jury. Cases cited by opposing counsel proceed upon the idea that there was evidence tending to prove negligence, which there is not in the case at bar. It was not the defendant’s duty to see Mrs. Carson off. Southern Railroad Go. v. Kendrick, 40 Miss. 374. As to passengers, the obligation is to carry, not to deliver. Calling out the name of the landing is not an invitation to get out. Cockle v. London South Eastern Railway Go., L. R. 5 C. P. 457 ; Bridges v. North London Railway Go., L. R. 6 Q. B. 377. If the carrier goes beyond the station, the passenger should request him to return. The clerk’s custom of escorting ladies off the boat is not a duty which either he or Leathers owes the public or the plaintiffs. argued the case orally.