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"Then it is claimed that in Lake Erie, at the time of the sudden increase of the leakage of the vessel, the master did not exercise ordinary care for the safety of the vessel, in not taking her to a safe port, or safe place on the beach, so as to prevent the loss of the vessel. I direct you that it was the duty of the master at the time to exercise ordinary care, under all the circumstances, to secure the safety of the vessel, and to prevent the loss thereof, or any greater loss than could be prevented by the exercise of such ordinary care by the master. You will then carefully consider the evidence, and all the circumstances surrounding the transaction, with the evidence of the experts who have given testimony in the case, and find whether the master was guilty of the want of ordinary care. If you find he did not exercise that care and diligence, and the vessel was lost for the want of such care, then the plaintiff is not entitled to recover in this action. [The burden, however, to show the want of ordinary care at the time of the loss in Lake Erie, must be shown by a fair preponderance of the proof on behalf of the defendant, for the reason that the defendant sets it up in its special defense, in the form of a special answer, and in that respect takes upon itself the establishment of the affirmative of that proposition.]
"Under these general directions-and these are about all the questions of law involved in the case-you are to make your finding. [So far as the matter of preliminary proof is concerned, required to be made out by the plaintiff, I do not understand that the defendant makes any great contest in reference to whether that was made or not, but it has denied it in the form of an answer, and you will look into the testimony and see whether that satisfactorily shows the proof of loss was made to this company before this action was brought, although the paper was not present on the trial before you.] Then carefully examine all the evidence, and if you find that the plaintiff has not made out all that is necessary to entitle him to recover, your verdict will be in favor of the defendant, but if you find, in the application of these general principles, under the evidence before you, that the plaintiff is entitled to recover in this action, the measure of that recovery is the amount of the policy of insurance, the vessel being a total loss, and having been estimated in the policy at $9,300. The measure of recovery would be the $7,000, and the plaintiff would be entitled to recover interest from the time the money became payable by the terms of the policy-sixty days after the presentation of the preliminary proof-until the first day of the present term.
"Now take the case, gentlemen, and make such a finding as will satisfy you of having correctly carried out these general principles, and correctly weighed, considered, and decided the questions of fact before you."
The bill of exceptions then states that the defendant took the following exceptions to the charge of the court: "(1) To that portion of the charge which relates to the breaking of the shaft on Lake Huron, without any fault of the master's, being a peril of the sea, and if the loss occurred from that the defendant would be liable. (2) To that portion of the charge which says the springing of a leak on Lake Erie from some unknown cause would be a peril of the sea for which the defendant would be liable. (3) To that portion of the charge which says the burden of the proof of unseaworthiness is on the defendant, and also to the statement of the charge that there is no claim on the part of the defendant that she was not seaworthy when she left L'Anse. (4) To that portion of the charge in reference to the duty of the plaintiff or master to repair at Detroit, and to that part in which the court says that, if an ordinarily prudent and skillful master would have stopped at Detroit and made repairs, then it was plaintiff's duty to so stop in this case. (5) To that portion of the charge, in the same connection, in which the court directs the jury that if they find, from the character of the leak, etc., in the exercise of ordinary care, the master would not stop, then the defendant would be liable. (6) To that portion of the charge in reference to the license of the master.
(7) To that part of the charge which says that seaworthiness must have reference to the nature of the voyage. (8) To that portion of the charge which says that the burden of proof is on the defendant to show the want of ordinary care at the time of the loss, in trying to prevent the loss, because the defendant sets that up in a special plea. (9) To that portion of the charge in reference to the preliminary proofs having been made in this action. (10) Also to the refusal of the court to charge the requests presented by the defendant in this case, numbered 1 to 15. (11) Also to the entire charge as given." It is then stated in the bill of exceptions that the defendant requested the court to give to the jury the following instructions:
"(1) Under all the testimony in this case, your verdict should be for the defendant.
"(2) The burden of proving a loss of this kind is on the plaintiff. There is no presumption that the loss was caused by a peril insured against by the defendant.
"(3) It was the duty of the master, at Detroit, before leaving or passing for Cleveland with a crippled tug, to ascertain at the signal station what would probably be the weather in the direction of Cleveland during the time necessary to reach that point, if such information could have been obtained at Detroit, and his failure to do so would be, under such circumstances, a want of ordinary care and skill.
"(4) It was the duty of the plaintiff to keep the tug Sprague in a seaworthy condition for the safe performance of this trip, that is, her hull must have been so tight, staunch, and strong as to be competent to resist all ordinary action of the winds and waves; and if he failed to put her in such condition at Detroit, and she was lost in consequence of her failure to be in such condition on Lake Erie after passing Detroit, and you find that sufficient repairs could have been made at Detroit, your verdict must be for defendant.
"(5) Under the policy in this case, the company does not agree to indemnify the plaintiff against all damages that might happen to her in the course of navigation of a vessel, or all the misfortunes that may befall her while upon the Lakes, and there are excepted from the provisions of this policy, and from the liability of the defendant, certain risks which the defendant does not take upon itself to bear. The purport of these exceptions, so far as this case is concerned, is that the company does not undertake to insure any loss to this vessel which may be occasioned by the incompetency of the master, the insufficiency of the crew, or want of ordinary care and skill in navigating, or any unseaworthiness of any description.
"(6) In order to find for the plaintiff, you must find that the loss of this tug was by a peril of the sea, that is, by some natural perils and operation of the elements which occurred without the intervention of human agency, and which the prudence of man could not foresee nor his strength resist. Imprudence or want of skill in a master may have been unforeseen, but it is not a fortuitous event. The insurer undertakes only to indemnify against extraordinary perils of the sea, and not against those ordinary ones to which every ship must inevitably be exposed.
"(7) It is admitted by the pleadings in this case that, after the breaking of the shaft on Lake Huron, the tug was towed to Port Huron, and also to Detroit, both ports of safety. This being so, if you find that the loss was occasioned by reason of unseaworthiness after leaving Detroit, the defendant is entitled to your verdict.
"(8) Under the circumstances of this case, if you find that the vessel was not seaworthy when she sprung a leak on Lake Erie, your verdict must be for the defendant, without reference necessarily to any question of whether the master used good or bad judgment in leaving or passing Detroit, because the plaintiff and defendant agreed in the policy that perils and losses growing out of unseaworthiness were not insured against.
"(9) If you find that the loss was incurred or contributed to by the incompetency of the master, or want of ordinary care and skill in navigation, your verdict must be for defendant.
"(10) If you find that, after the danger was discovered on Lake Erie, the master did not do what a competent master of ordinary prudence would do, and that, by the use of ordinary skill and care, under such circumstances, by a competent master, the tug could have been got to a place of safety, and her loss prevented, your verdict should be for the defendant.
"(11) The fact that this tug began leaking so rapidly on Lake Erie, in moderate weather, so soon after leaving Detroit, raises a presumption that, either from the effects of the accident on Lake Huron, or in some other respect, she was unseaworthy for the undertaking to go to Cleveland when she left Detroit, which it devolves upon the plaintiff to explain and overcome.
"(12) The burden of proof is on the plaintiff in this case, to show, by a fair preponderance of the testimony, that the sinking and loss of this tug could not have been guarded against or prevented by the ordinary exertion of human skill and prudence.
"(13) In this case the words 'ordinary skill' and 'ordinary care' have a relative meaning. What would be ordinary care in relation to a strong, staunch, sound vessel, might fall far short of ordinary care and skill in relation to a wounded vessel. What might be ordinary care and skill if the tug was seaworthy and navigating as a tug, might fall far short of ordinary care when the tug is broken down and a severe and dangerous leak has been temporarily stopped. You must consider the circumstances of the case, the condition of the vessel, whether she could meet and withstand the ordinary wear and tear and strain of the elements, or required fine weather and smooth water; what means there existed of ascertaining the probable weather during the time he would be occupied in crossing Lake Erie; what precaution he took or failed to take in this respect; as well as all other circumstances.
"(14) If this tug, after her accident on Lake Huron, was unseaworthy, and in consequence was lost on Lake Erie, her loss is to be attributed to the unseaworthiness, and not to the accident, provided the master had opportunity to repair the damage done on Lake Huron, and in that case your verdict must be for the defendant.
"Which requests to charge were refused by the court, except so far as covered by the charge already given, to which refusal to charge the defendant excepted.
"And the jury, after being charged, retired, and afterwards returned a verdict for said plaintiff against said defendant for the sum of seven thousand dollars; and, the defendant having filed its motion for new trial for the reasons and causes set out in said motion, and the said circuit court having overruled said motion, and entered judgment on said verdict, the said defendant excepted to the said ruling of said court overruling said motion for new trial, and to said judgment, and prayed the court here to sign and seal this its bill of exceptions, and order the same to be made a part of the record in this case; all which is done and ordered as said defendant has prayed for." Then follow the signature and seal of the judge.
The defendant alleges that the circuit court erred in overruling objections taken by it to testimony offered by the plaintiff; and in rejecting testimony offered by the defendant; and in overruling the motion made by the defendant to take the case from the jury at the close of the plaintiff's testimony; and in overruling the motion made by the defendant, at the close of its testimony, to take the case from the jury and to direct a verdict for the defendant; and in overruling objections taken by the defendant to the charge to the jury; and in overruling the defendant's requests to instruct the jury.
Assuming that the bill of exceptions sufficiently indicates that the exceptions taken by the defendant to the admissions and exclusions of evidence
were taken during the course of the trial, we proceed to consider the objections urged to the admissions of evidence.
John Bowen, the master of the tug, who was on board of her at the time she was lost, was asked this question: "Question. What do you say as to its being good seamanship and prudent to bring her through to Cleveland at that time? (Objected to, objection overruled, and defendant excepted.) swer. I think it was, on my part." George Ellis, who was a fireman on the tug at the time, was asked the following question: "Q. What is the fact about whether vessels do sometimes begin to leak in a calm, when you cannot explain how the leak comes? (Objected to, objection overruled, and defendant excepted.) A. I could not explain that; I have not known of other cases of the kind where you did not know the cause of the leak." And again: “Q. State whether it would have been good seamanship and prudent to try to tow the Sprague across the lake to Cleveland at the time you got ready to leave her. (Objected to, objection overruled, and defendant excepted.) A. Well, sir, if I was to get Lake Erie for it, I would not take it across,—yes, I mean it was not prudent." Walter S. Rose, the mate of the tug, who was on board of her, was asked this question: "Q. So that, when you got to Detroit, state what need or occasion there was for your stopping there because of any leakage that you were not able to control; whether there was anything of that kind. (Objected to, objection overruled, and defendant excepted.) A. There was nothing any more than there was all the time down,-just the same." And again: "Q. What do you say as to its being a matter of prudence for you to come past Port Huron, or to come past Detroit, and to try and get the tug to the home port, in order to have her repaired there? The question is whether the captain exercised reasonable prudence in bringing her by? (Objected to, objection overruled, and defendant excepted.) A. I think he did." The plaintiff himself, as a witness, was asked whether, on the facts of the case, detailed to him in the question, it was the exercise of good seamanship and prudence, when the vessel reached Port Huron, to continue right on, to bring her to her home port of Cleveland. He answered that he would consider it good seamanship. He was also asked: "Q. If you could stop the leak, state whether any such boat would be seaworthy? A. I would not consider her unseaworthy to tow to Detroit, or any other port." He was also asked, on the facts, as to its being prudent to keep on from Detroit, and bring the tug to her home port. He answered that he thought it would be prudent and good seamanship. The entry in respect to each of these three question is, Objected to, objection overruled, and defendant excepted." Similar objections were made to the testimony of Edward Kelly, an expert witness.
In regard to Bowen, the objection is made that he was not qualified as an expert. But he was the master of this vessel and on board of her at the time; had been her master from the time she went out in the spring until she was lost; had made two or three trips in her the fall before; had run another tug from Cleveland for a few weeks in 1884, before taking the Sprague; and had been engaged in the navigation of the lakes and adjacent waters about 20 or 21 years, off and on. The witness Ellis had followed the lakes for 27 years, and had been connected with tugs about 4 years, and was a fireman on this tug. The witness Rose had followed the lakes for 36 years, and was mate of the tug, and had been second mate of a steam-barge for one season. The plaintiff had been in the tug business for 20 or 25 years, and had run a tug all around Lake Erie. The witness Kelly had been a part of two seasons in a tug; had sailed sailing vessels, steamers, and steam-barges; and had sailed a few trips in this tug. In regard to the objection that these witnesses were not qualified as experts, in addition to the fact that three of them were on board of the tug at the time, and in its service, the court charged the jury that the value of expert testimony depended very largely upon the skill, the information or the knowledge, and the experience of the witness; and that, in
giving weight to the expert testimony, the jury should be careful to ascertain what the evidence established as to the truth of the hypothetical questions put to the witnesses by the counsel on the one side and on the other. We think that the witnesses in question were competent to give their testimony to the jury, in response to the questions asked of them, and that the question as to the weight of the evidence of each of them was one for the jury, in view of the testimony of each as to his experience. Transportation Line v. Hope, 95 U. S. 297, 298; McGowan v. Bark Co., 121 U. S. 575, 609, 7 Sup. Ct. Rep. 1315.
It is also objected that the testimony given by the five witnesses above mentioned was not the proper subject of expert testimony; that, under the policy in this case, the proper inquiry was not as to the prudence of the cap-tain in passing Port Huron; and that, if the vessel was, as a matter of fact, unseaworthy, either because of her rottenness or her unnavigability, or the broken and leaky condition of her stern, and if the loss was occasioned by unseaworthiness, the defendant was not liable. But we think that the testimony referred to was competent, in view of the questions the jury were to consider, as properly laid before them by the court in its charge, to be considered hereafter.
We see no objection to the introduction of the secondary evidence as to theproofs of loss, on the failure of the defendant to produce them on notice. This applies to the evidence of the witness W. B. Scott and of the plaintiff on that subject. As to the other objections to the testimony of the witness. Scott, and to that of the plaintiff, and the objections to the exclusion of a question asked of the defendant's witness Newton, and to the admission of testimony given by the witness McNillie, and to the admission of some testimony given by Captain Bowen on rebuttal, and of testimony given on the part of the plaintiff as to the value of the tug, it is sufficient to say that we see no objection to the rulings of the court, as the testimony admitted was either competent, or, if not strictly competent, was harmless, and that ex-cluded was incompetent.
One of the objections to the exclusion of evidence was that the defendant. was not allowed to ask its witness, the chief engineer of the tug at the time of the occurrence, what, if any, talk he had with the captain of the tug after the Wilcox took her in tow, in regard to the leak or what should be done. It is not stated what it was proposed to prove, and it is not shown that the statement of the captain at the time mentioned ought to be regarded as a part of the res gesta. Railroad v. O'Brien, 119 U. S. 99, 7 Sup. Ct. Rep. 118.. The evidence was not competent.
As to the overruling of the motion of the defendant to take the case from the jury at the close of the plaintiff's testimony, it was a motion for a peremp-tory nonsuit against the will of the plaintiff; and it was waived by the introduction by the defendant of testimony in the further progress of the case. D' Wolf v. Rabaud, 1 Pet. 476; Crane v. Morris, 6 Pet. 598; Silsby v. Foote, 14 How. 218; Castle v. Bullard, 23 How. 172, 183; Schuchardt v. Allens, 1 Wall. 359, 369; Railway v. Cummings, 106 U. S. 700, 1 Sup. Ct. Rep. 493;. Insurance Co. v. Crandal, 120 U. S. 527, 530, 7 Sup. Ct. Rep. 685.
As to the motion of the defendant, at the close of the testimony on both sides, to take the case from the jury, and direct a verdict for the defendant,. we are of opinion that the case was, on the evidence, one for the jury.
As to the exceptions to the charge of the court, they may, perhaps, fairly be said to point sufficiently to the portions of the charge which are hereinbe fore set forth in brackets.
As to the 14 requests to charge which were refused by the court, except so far as they were covered by the charge which it had already given, the statement in the bill of exceptions is that the defendant excepted to the "refusal to charge," that is, to the refusal to charge the requests as a whole.