BUNNEY V. HOLT,
(Cl'l'cuit Gourt, No D. Ohio, E. D. February Term, 1883.)
Neglig-ence is, the failure to do what 8. reasonably-prudent person would or. dinarily have done under the circumstances of the situation, or doing what a person under the existing circumstances would not have done.
Where a plaintiff so far contributes to an injury complained of by his own negligence, or want of ordinary care and cantion, that but for that,neglig(Jnce, or want of care and caution on his part the injurJ' would not have happe'ned,' he is not entitled to recover.
3.'8AME-'-OWNER OF VESSEL-DEGREE OF CARE.
rrhe owner of a veS8el is required to exercise the usual and customary mode care adopt(Jd by reasonably-prudent persons in control of vessels of character, for safety to their employes from hatchways, usual,ly adopted and used on board of vessels of the eharacter of his, and'under lUte circumstances, dnd if that was not'done by the owner and his agents, such failure would 'be negligence, 'and if an, employe w,as injured thereby his own carelessness contributing thereto, the owner would be liable to damages theI'efor.
4. BA:M:E:-NEGLEC'r OF PORTER TO' VESSEL-Co·LABORER· . Where it is the duty of a porter on aves'sel to place lightsup6navessel and about the hatchways,if left open, and by reason of his failure to place such lights an employe fa Ill! down a hatchway and is injured, although such porter 'may have been a c,o-laborer in performing his duty in regard to the lighting of the vessel, he is the agent of the owner of the vessel, and his negligence would be.thenegligence of such. owner. 6. AND BERVANT.;...HrsKS OF EMPLOYMENT. , A, f>arty accepting the employment of a deck hand holds out to the employer that he is competent to discharge the duties of such employment, and incurs all the necessary and reasonable liabilities to accidents incident thereto, and if at the time of the hiring nothing is said a8 to his inexperience, the employer has a right to presume that he is familiar with all the duties of a deck hand: but if he informs the employer that he has no such experience, and no 'knowledge of the localities of the hatchways or of the gangways of the vessel, a greater degree of care would be required on the part of the employer to protect him from dangers that might be incidental to the employment under those circumstances. 6. NEGLIGENCE-WHAT JURY TO CONSIDER. Where an injury is alleged to have been caused by falling through a hatchway on a vessel, left open at night and not properly light.ed, the jury should consider what,is the usual custom, manner, and mode of lighting up such vessels, then determine whether the hlltchway was negligently left opel). or was properly lighted by the parties in charge of the vessel, and whether, under all the ciroumstances of the case. the party injured was, not himself !!:uiltv of negligence.
SAME-MEASURE OF DAMAGES.
In such a case, where the jury find in favor of the plaintiff, they should assess him such damages as under the circumstances would be a reasonable compensa.tion for the injury received, taking into consideration the physical pain
BUNNEY V. HOLT.
and suffering endureil by hiro, his lOllS of time, his expenses for nursing and doctors' bills, his diminished capacity to attend to business or work in the future, and whether or not the disability occasioned by the injury is permanent.
J., (chm'qing jury.) The plaintiff in this case was employed by the intestate upon the steam-barge Nebraska as a deck hand on some day in the month of November, 1877, and on the same evening, about 8 o'clock, while executing an order given by tain in control of the vessel, owned in partby the intestate, fell into the open hatchway and was seriously injured, and for which he seeks to recover damages in this action. The plaintiff alleges that the testate defendant, by bis officers, was guilty of carelessness and negligence in allowing, after night,-a, hatchway on the vessel to. be left open and without suitable and proper lights to guard against danger from itto those employed on the vessel, and particUlarly. to the plaintiff. ' That the plaintiff was without fault and not guiltyof any carelessness that contributed to the injury compla,ined of. This negligence of the intestate and due care of the plaintiff are denied by the defendant. This allegationin the petition, and the denial by the defendant, form the issue that you are to decide' and determine from the evidence you have heard on the trial. To entitle the plaintiff to recover it must be shown to you that the injury complained of was occasioned entirely by the carelessness and negligence or improper conduct of the intesta te defendant, through his agents having control of the vessel at the time. Negligence is the failure to do .what a reasonably-prudent person would ordinarily have done under tbe of the situation, or doing what a person under the existing circumstances would not have done. If the plaintiff so far contributed to the injury complained of by his own negligence or want of ordinary care and caution as that, but for that negligence or want of care and caution on his part, the injury would not have bappened, then he is not entitled to recover. One who, by his own negligence, has brought injury upon bimself, cannot recover damages for it. In settling the fact of carelessness and negligence on the part of the intestate, as well as that of the plaintiff, it is important to settle the relative duties Of each. The intestate was required to use ordi. nary care in regard to the hatchway on the vessel in the night-time, and such as .would reasonably guard and secure the safety of his employes on the vessel, and to guard against danger and injury to them in the performllnce of their work. In doing so it was his duty to v.15,no.] 2 56
xercise and employ tbeusual and customary mode and care adopted by reasonably-ptridi:mt persona in control of a vessel of like character, for safety from the hatchways, usually adopted and used on board of vessels of the character of the Nebraska, and under like circumstances. If such usual care was employed, then the intestate performed his duty towards the plaintiff. But if that was not done by the intestate and his agents, then such failure would be negligence; and· if thereby the plaintiff was injured, without his own carelessness contributing thereto, the intestate would be Iial:i1e to damages therefor. / The intestate ,defendant cannot relieve himself ofthisresponsibility by showing that it wastbe duty of the porter employed on the vessel by the intestate to place lights upon the vessel and about the hatchways, if left open, and that if none were so placed by the porter it was the negligence of the porter although the porter may have been a co-laborer with the plaintiff upon the vessel. In performing his duty in regard to such lighting of the vessel, he WILS the agent of the intestate for that purpose, and such negligence would be the negligence of the intestate. It was. the duty of the plaintiff to use ordinary care and: caution to avoid the 1njury., even though ,the intestate had been guilty of in not having the hatchway properly lighted. If it appear from the evidence that it was usual and customary in the use of'such vessels after night to close, the hatchway, or, if left open for work"to place lights in proper· places to warn persons of the danger of an open hatchway, then, if the plaintiff, when he got upon the vessel near the hatchway, found no lights were placed there, he had a right in going forward to suppose the hatchway was properly closed, or if he did not the locality of the hatchway, to suppose the deck was free from danger in passing ' over to execute the orders given by the captain. The plaintiff in taking the employment of the intestate held out ·to him that he was qualified to discharge the duties he was to perform, and by the contract of hiring he incurred all the necessary and rea· sonable liabilities to accident incident; to the positiop in which he employed himself to work for the intestate. If the intestate or his agent was not infortned of his- want of experience for the place he was to fill, then he had a right to presume he was properly familiar with his duties and the mode of their performance. If he was hired without arything being said by the plaintiff. at the time of the hiring that he had no experience, the intestate or the officer .representing the intes.;· tate had a right to presume he was familiar all the dutie!!> that would be required to perform as a deck hand on board of the ves-
aUNNlIlY. v. JIOLT.
sel. But if the aglilnt of the intElstate was informed at the time that the plaintiff had no such experience and had no of the localities ,of the hatchways or of the gangways of the boat, then a greater and 'a' higher degree of care would be required at his hands to him from danger that might be inCidental to the employ. mentunder those circumstances. .If the plaintiff had knowledge of danger on from the hatchway or obstruction, and it being dark, it .devolved greater care on his part .i.n approaching a place .where. danger might be met, and in doing so, he would be required to 'exercise a higher of care than he' would under other circum. st,ances.· You will see the.n, gentlePJ,ep, from these general instructions, that the important question or fact for you to is as to the condition of the hatchway at the time whe,n the plaintiff fell into it,for it is conceded by the parties that he did fall into it. Now, it is claimed on behalf of the. plaintiff that the hatchway was leftopen, (and that seems ,to be and that there were. no lights there him or notify him that there was danger of his into it. It is said on beh.all of the defendant that the hatch'ways were lighted up. is important for you, gentlemen, to look into the evidence of the witnesses in regard to what is the usual custom and manner and mode of lighting up these vessels, and determine as a question .fact whether the hatchway at the time was left open for purposes of work, or, if left open, 'wbether it :was properly by the parties 1n charge of the vessel, and that .is the principal question of fact that you are to, determine in this controversy. If this vessel was properly lighted up at the' time t,his approached the of the hatchway, in the exeo11tion of this order, it would require much evidence to show that he, without carelessness on his part, fell into it, and the intestate would have discharged his duty if he had ,properly lighted it up, and, 0.1. though it might be that the plaintiff fell in the hatchway, yet carelessness could be hardly imputed .to tb,e persons in charge of the ves. sel if it: was, so properly lighted up. , . ' . . · 1 Now,. take these general directions and apply ,them to the evidence before you, and it is for you to determine whether the plaintiff has made out his case,-whether he has shown the ness complained of in the petition, and whether the evidence, as a' whole, shows that he was not himself guilty of negligence aud carelessness. If you find in favor of the plaintiff on that issue, then your verdict will be for the plaintiff. But, on the other han'i, if you find
that the defendant was guilty of carelessness, but that' the plaintiff himself contributed to the injury complained of, then your verdict would be in favor of the defendant, for both of these things must be made out before the plaintiff, in a case like this, is entitled to recover. If, then, you find in favor of the plaintiff on this question of fact, it will be your duty to assess him such damages as you think, under the circumstances, he is entitled to receive-such reasonable pensationfor the injury that he received on the occasion complained of. The amount that a plaintiff, in a case like this, is entitled to recover is entirely within your control. You are to exercise your own sound judgment upon that subject, if you find for the plaintiff, in assessing the amount of· damages. There are, however; several elements to be taken into account in such assessments of damages, such as the physical suffering and pain endured, occasioned by the injury complained of, the loss of time occa:siotled by the injury, the expenses of nursing and doctor diminished capacity to attend to business or work In the future, a permtt:nent disability occasiohMby the injury, if such be shown by the evidence.
The jpry, after deliberation, returned a verdict for the plaintiff for the sum of $4,900. Amotion to set aside the verdict, and for a new trial, was filed by defendant, alleging, among other things, ertor iri the charge of the court in declining to charge the jury that the negligence in failing to light the hatchway, if such failure was established, was the negligence ofa co-laborer of the plaintiff, and that therefore the plaintiff could not recover. By request of Judge WELKER,Judge BAXTER sat with him, and heard the argument on the motion for a rtew trial, and 'the circuit judge funy concurring as to: the principles oflltw stated in the charge of Judge WELKER, the motion for anew trial WitS overruledl'bythe latter, and a judgment entered on the verdict for the amount returriedbythe jury.'
CENTRAL TRUST CO. v. COOK COUNTY NAT. BANK.
CENrRAL TRUST Uo., Receiver, etc., v. COOK COUNTY NAT. BANK.
(Oircuit Oourt, N. D. Illinois. April 16,1883.)
BANKING-DISOOUNT OF NOTE OF PRESIDENT INDORSED BY BANK.
Where a party discounts a note given by president of a bank, with the Indorsement of the bank thereon, supposing that he is dealing with and !!-d. vancing the money to the bank, and not the president personally, the bank will beheld liable for the payment of such note. Claflin·v. FarmfJl's' Loan tJ Trust 00. 25 N. Y. 293, distinguished. Although an association may not have power to do a general banking busi· ness, if a .person borrows money such associllt.ion such money may: bere. covered in an 'action for money 'hali and rece,ved. l'Tus' Vo. v. lletmfJl', 77 Y. 64, distinguished. .
SAME-REOOVERY OF LOAN-No AUTHORITY TO Do BANKING BUSINESS.
At Law. Louis L. Pal·/lJ.er, for plaintiff. ¥onroc « BcrU, for defendant! BLODGETT, J. The declaration, in this case is against the defend. ant as maker of two notes for' $25,000 dated No:vember 19, 1874, payable 60 days after date, with interest; and the other dated DecembeJ.7 29, 1814, payable on demand, with interest,-both executed on behalf of the defendant by Chauncey T.Bowenj and made payable at the New York State Loan & Trust Company office in New York ; two notes for. $25,000. each, dated September made by B. F. Allen, payable to his-.own order, one in six .and the other in seven months from date, indorsed by Allen to the defendant and :by the defendant indorsed to the New York. State Loa.n·& Trust Company; one noteJor.$5,OOO, dated September 24, 1874, made by the First National Bank of Wyandotte, Kansas, payable to the defendant bank four months after date, and payment guarantied by the dElfendltnts to the NewYbrk State.Loan & Trust Company; and one note fqr $,10,000, and 10 pe.I;cent interest after due, dated E?eptem. Rer 28, 1874,mltde by B. F. Murphy & Co., ,payable to defendant fOUT months after date, and the payment whereof is also guarantied by the defendant tp the New York State Loan & Trust Company; ahd also for a balanCE) of open account due bom the defendant t(} the New York State Loan & Company. The declaration count·s for moneys loaned and money had and received for·the useol the plaintiff, and also for ,the U$e afthe New York State Loan & .Tru'8t CompaIlY' The defendanfa proof tends to show that the two, Allen .notes represent an advance m,ade by the loan and trast company to