Commonwealth v. Coburn

At the argument in this court the counsel for the defendant relied only upon his exceptions to the refusal of the justice presiding at the trial to give the fourth and fifth requests for instructions, and to the instructions given instead thereof.

The fourth request for instructions assumes that the improper conduct of third persons contributing to the injury would excuse the defendant, even although the defendant neglected to perform his duty, and it was properly refused. The fifth request for instructions does not correctly state the allegations of 'negligence contained in the indictment, or the law applicable to the case, and was also properly refused. The negligence and carelessness alleged in the indictment are in permitting the boat to be defective and unsafe, and in furnishing it with a dangerous hurricane *563deck and in permitting too many passengers “ to go, be and remain on said hurricane deck.” It was not necessary to allege that the defendants failed to take proper measures to restrain or control the crowd at the wharf. So long as the crowd confined itself to the wharf, it contributed nothing to the injury. It was the crowd on the hurricane deck that occasioned the injury; and the jury must have found that the defendant was negligent in permitting this crowd “ to go, be and remain ” upon a hurricane deck constructed as that was upon such a steamboat. It would not have been good pleading to set out in the indictment the evidence which tended to support this charge of negligence, and it was not necessary to allege the specific acts the neglect to do which constituted this negligence, because the negligence did not consist in the omission to do any particular act or acts. The duty was a general one to prevent by all reasonable and proper means the dangerous overcrowding of the hurricane deck, and a neglect to perform this duty was the negligence charged. Commonwealth v. Boston & Worcester Railroad, 11 Cush. 512.

The instructions given were in accordance with the opinion in Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361, and were appropriate and sufficient.

Exceptions overruled.