Rees v. Joseph Walton & Co.
Rees v. Joseph Walton & Co.
Opinion of the Court
Opinion by
The plaintiffs owned the steamer John K. Fisher, the defendants the Coal City. Both navigated the Monongahela river on the night of January 6,1899. The Fisher had been towing on the river, but on the day named her tow had been tied up and her work ended. She then steamed down stream intending to round the point into the Allegeheny river and proceed to her landing on the north side. In her course down the Monongahela she took the Pittsburg side. The Coal City was coming up the Ohio bound for her landing which was on the south side of the Monongahela, when as she was rounding the point she struck the Fisher amidships and seriously damaged her. The plaintiff alleged the collision was caused by the negligence of the Coal City, in that, although out of her course she sounded no signals and ran on at full speed; displayed no lights on her smokestack as the law required. On the other hand plaintiffs averred that the Fisher acted with proper care under the circumstances ; it being a very foggy night she ran very slowly; when the Coal City came within sight she reversed her engines and was actually backing away when the collision occurred; that she displayed the statutory light and sounded fog signals; that as she approached the Point she sounded a whistle which could be heard far down the Ohio river below the approaching Coal City.
After the evidence was all in the learned judge of the court below, being of opinion, that it showed contributory negligence on the part of the Fisher, directed a nonsuit, which he after-wards, on motion refused to take off, and we have this appeal by plaintiffs. In his opinion refusing to take off the nonsuit, he bases the charge of contributory negligence on one fact, that under the circumstances the Fisher was steaming at too great speed. He says: “ Taking plaintiffs’ own account of the character of the weather, the fact as testified to by the master and pilot, that he could see not over three hundred feet and that frequently the smoke and fog were so thick that he could not see even that distance, which is fully borne out by the fact that he did'not see the lights on defendants’ boat at all. until the collision took place, it seems plain that a speed of nine miles an hour was an immoderate speed. As we understand the cases which have been presented to us, they hold
To our minds, the evidence does not show clearly what the speed of the Fisher was per hour just before the collision; it does seem to show, at least inferentially, that it was going very slowly because of the dangerous navigation that night. From the testimony of boatmen of knowledge and experience, it would seem, that a boat running in a fog under the most care
It seems to us, while it may be a fact, that the rate of speed of the Fisher was negligent, nevertheless, that is an inference from the evidence, that a jury might not have drawn, or might reasonably have drawn a different one; therefore, as is said in Bucldin v. Davidson, 155 Pa. 362, “ the plaintiff is entitled to the benefit of every fact and inference of fact which might have been found by the jury or drawn by them from the testimony before them. ”
The judgment is reversed and a procedendo awarded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.