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October 1, 1877


ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania. This was an action on the case by Hope, the plaintiff below, to recover damages for the loss of the canal barge or vessel 'Mary E. Loughney,' her cargo, and for freight there n. The plaintiff alleges, in substance, that he delivered the barge, valued at $3,000, to the defendant, to be towed, for a certain sum to be paid therefor, from Jersey City to New Haven; and that, by reason of gross and culpable negligence, and the want of ordinary care and skill of the defendant in towing and conducting the barge, she became totally lost. The defendant pleaded the general issue. The jury found for the plaintiff for $2,125.30; and, judgment having been rendered thereon, the defendant brought the case here. The remaining facts, the charge as given and that refused, as well as the assignment of errors, are set forth in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Hunt delivered the opinion of the court.

Mr. J. C. Gray for the plaintiff in error.

No counsel appeared for the defendant in error.

Hope, the plaintiff in the Circuit Court, sought to recover damages for the loss of his barge, which the defendants undertook to tow from Jersey City to New Haven, through Long Island Sound.

The barge was lost before reaching her destination; and the jury to which the case was submitted found a verdict for the plaintiff for $2,125.30 damages. This was based upon the theory of the negligence of the defendants in the performance of their duty.

With the general question of negligence we have nothing to do. The finding of the jury is conclusive upon that subject. It is only the specific allegations of error in the rulings or charges of the judge at the trial that we are called upon to consider.

These allegations are as follows: It is said that the court erred, first, in overruling the objection of defendant's counsel to the following question, asked of Patrick McCarty, a witness, by the counsel for the plaintiff: 'With your experience, would it be safe or prudent for a tug-boat on Chesapeake Bay, or any other wide water, to tug three boats abreast, with a high wind?'

The witness had testified that for many years he had been the captain of a tug-boat, and was familiar with the making up of tows; that he was a pilot, and had towed vessels on Long Island Sound, although he was not familiar with the Sound, but that he was familiar with the waters of the Chesapeake Bay.

The witness was an expert, and was called and testified as such. His knowledge and experience fairly entitled him to that position. It is permitted to ask questions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was asked a question involving the point to be decided by the jury. As an expert, he could properly aid the jury by such evidence, although it would not be competent to be given by an ordinary witness. It is upon subjects on which the jury are not as well able to judge for themselves as is the witness that an expert as such is expected to testify. Evidence of this character is often given upon subjects requiring medical knowledge and science, but it is by no means limited to that class of cases. It is competent upon the question of the value of land, Clark v. Baird, 9 N. Y. 183; Bearss v. Copely, 10 id. 93; or as to the value of a particular breed of horses, Harris v. Panama Railroad Co., 36 N. Y. Superior Ct. 373; or upon the value of the professional services of a lawyer, Jackson v. New York Central Railroad Co., 2 Thomp. & C. (N. Y.) 653; or on the question of negligence in moving a vessel, Moore v. Westervelt, 9 Bosw. (N. Y.) 558; or on the necessity of a jettison, Price v. Hartshorn, 44 N. Y. 94. In Walsh v. Washington Marine Insurance Co., 32 id. 427, it was decided that the testimony of experienced navigators on questions involving nautical skill was admissible. The witness in that case was asked to what cause the loss of the vessel was attributable, which was the point to be decided by the jury. The court sustained the admission of the evidence, using this language: 'We entertain no doubt that those who are accustomed to the responsibility o command, and whose lives are spent on the ocean, are qualified as experts to prove the practical effect of cross-seas and heavy swells, shifting winds and sudden squalls.' The books give a great variety of cases in which evidence of this character is admissible, and we have no doubt of the competency of the evidence to which this objection is made.

Second, The defendants requested the court to charge the jury 'that the plaintiff's barge, the 'Mary E. Loughney,' was within the possession and the exclusive care and control of her owner; and the defendants, the Eastern Transportation Line, were not bailees of the boat, nor was the barge placed within their exclusive custody and control, and they were only liable for failure to use ordinary care and diligence.'

To which the court answered: 'By the contract between the parties, the defendants undertook to tow the plaintiff's barge from Jersey City to New Haven. As a necessary incident of this engagement, the defendants were entitled and were bound to assume supreme control and direction of the plaintiff's boat, and of the persons in charge of her, so far as was necessary to enable them to fulfil their engagement, and they were bound to exercise such degree of diligence and care as a prudent and skilful performance of the service for which they stipulated would require.'

The answer of the court properly defined the position of the parties. While it was very well to ask a charge that the transporter of the boat was not a bailee, and perhaps that the boat was not within his exclusive control, and that only ordinary care and diligence were required on his part, it was quite incorrect to ask a charge that the boat was within the possession and the exclusive care and control of her owner.

The transportation company did not occupy the position of a common carrier, and did not have that exclusive control of the barge which that relation would imply. It did not employ or pay the master and the men in charge of her, nor did it exercise that internal control of her cargo, its storage, its protection, and the like, which belonged to a bailee, and it was not bound to the extraordinary duties and liabilities of a common carrier. Alexander v. Greene, 3 Hill (N. Y.), 9.

It is, however, impossible to admit the proposition that the barge remained in the exclusive possession, care, and control of her owner; that is, that the transporter had not and could not take any, the slightest, care of her, and was not permitted to exercise the slightest ...

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