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Marston & Eastman, for plaintiff.

may seem to them entitled to more respect thau the

rule of law that excludes it. Copeland & Elderly aud J. S. H. Frink, for defend.

The statement, withante.

drawu not because it is contrary to the fact, but be

cause it is not a legal mode of proving the fact, may do SMITH, J. (Omitting other points.] The defend- as much damage as if it had not been withdrawn. Eravts' counsel, in his argument to the jury, commented roneous testimony corrected by the witness who gave on the fact that one of the physicians consulted by the it, and an erroneous ruling corrected by the judge plaintiff had not been called as a witness. This was who made it, stand on different ground. fair matter of argument. The defendants could right- If a party should sit as a joint juror in his own case, fully ask the jury to believe, that if the physician had it might not be enough for his counsel to request him been called, his testimony would have been unfavora- to iguore his own interest, and for the court to inble to the plaintiff. However slight the weight such struct him it is his duty to do so. If all the jurors an inference ought to have, the jury could not be in-had formed a decided opinion on the merits of the structed that as a matter of law they were bound to case before they were im panelled, the request of counwholly disregard it. The case does not raise the ques-sel, and the instructions of the court, not to be swayed tion whether any argument could have been legally by their former convictions, or by what they had heard advanced in reply. No argumentative reply was made, at their lodgings, or read in the newspapers during but the plaiutiff's counsel said that the physician had the trial, might not make the trial fair. After every not been called because he found from conversation thing possible is done, the bias of interest or previous with him that he had examined the plaintiff, and opinion may not be wholly overoome. In such cases could give no testimony as to her condition. If tbis as this the operation of the retraction and the rehearsay proof of a material fact had been received quested instructions can be most accurately estifrom a witness, its unrevoked admission would have mated at the trial term after verdiot. Burnham v. been corrected by a new trial. The physician con- Butler, , 58 N. H. 568; Cole v. Boardman, 63 id. 580, versed without the moral and legal sanction of an 583. In some cases they may, and in others they may oath, and without the test of cross-examination. not, be effectual. Much may depend upon the sinHis conversation, not provable by a witness, cerity and earnestness of the retractor's efforts to was proved by a person

not

a witness, not counteract his fault. If the trial is allowed to go on, sworn, and not subject to cross-examination. Had he will be bound, after the verdict in his favor, to obthe plaintiff's whole case been proved in the same way tain a finding that the result was not affected by his the error, though extended in fact over more ground, tort, and ought not to be annulled on account of it. would not have been raised to a higher degree of ille- Whether the error is such that justice seems to regality. If the plaintiff could retain a verdict obtained quire the trial to be stopped, and begun anew before or enhanced by her counsel's uusworn assertion of in- | another jury, immediately or after a lapse of time admissible hearsay in argument, the actual wrong done (Hamblett v. IIamblett, 6 N. H. 333, 347; Pennsylvania the defendants would be no greater were it accom- Co. v. Roy, 102 U. S. 451, 459) is ordinarily a question plished by other persons giving the jury the same kind of fact. If the trial is broken off or the verdict set of proof privately and criminally. The court had no aside, there is a question of costs. Whatever is done, more authority to admit the hearsay, and dispense | indemnification is the duty of the party by whom, for with the oath and the opportunity for cross-examina- a time at least, the course of justice is interrupted and tion required by law, than to render judgment, with- | perverted. He is not entitled to a discharge of the out any form or pretense of trial, upon a rumor casu- jury, a waiver of the objection, or a gain of any adally heard in the street.

vantage. The law does not transfer the defendants' property In Brown v. Swineford, 44 Wis. 282, the court, reto the plaintiff as damages without a fair trial, and in versing a judgment and ordering a new trial on an exa legal sense a trial is not fair when such statements ception of this kind, say: “The learned counsel went as were made in this case have any influence favorable beyond the legitimate scope of all argument, by statto the party making them. He is therefore bound to ing and commenting on facts not in evidence * do every thing necessary to be done to rectify his The appellant took his exception, and his counsel now wrong, and restore to the trial the fairness of which he supports it by numerous cases.

All of them has divested it. He is legally and equitably bound to support the rule now adopted by this court, that it is prevent his statement having effect upon the verdict. error sufficient to reverse a judgment for counsel, This he cannot do without explicitly and unqualifiedly against objection, to state facts pertinent to the issue acknowledging his error, and withdrawing his remark and not in evidence, or to assume arguendo such facts in a manner that will go as far as any retraction can to be in the case when they are not. Some of the cases go to erase from the minds of the jury the impression go further, and reverse judgments for imputation by his remark was calculated to make. But it is by no counsel of facts not pertinent to the issue, but calcunieans certain that the jury will, at his request, disre- lated to prejudice the case.

There are cases gard the fact stated. It is necessary they should be in conflict with those which support this rule. But in instructed that the unsworn remark is not evidence, the judgment of this court, the rule is supported by and can have no weight in favor of the party improp- the weight of authority and by principle. Doubtless erly making it. It is the duty of the wrong-doer to re- the Circuit Court can, as it did in this case, charge the quest such instructions. The other party does his duty jury to disregard all statements of fact not in evi. when he objects to the wrong inflicted upon him, and dence, but it is not so certain that a jury will do so. does not allow it to be anderstood that he waives his Verdicts are often found against evidence, and withobjection. In spite of the fullest and frankest retrac- out evidence, to warrant so great a reliance on the distion, and the most explicit and emphatic instructions crimination of jurors. And without notes of the evito lay the remark entirely out of consideration, the dence, it may be often difficult for jurors to distrial may not be fair. It may not be in the power of criminate between the statements of fact by counsel, the retracting counsel and the court to remove the following the evidence, and outside of it. It is suffiprejudice. Their combined and vigorous exertions cient that the extraprofessional statements of counsel may not control the mental operations of the jury. may greatly prejudice the jury and affect the verdict. The jury may not be able to wholly free their mem

* It is the duty of counsel to make the most ory or the judgment from the unfair and illegal im- of the case which his client is able to give him; but pressions made by a plausible statement of fact, which counsel is out of his duty and his right, and outside of

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the principle and object of his profession, when he been aggravated by the statement of the prosecuting travels out of his client's case, and assumes to supply attorney that he had other witnesses to reputation, its deficiencies. Therefore is it that the nice sense of which be withheld because of the defendant's objecthe profession regards with such distrust and aversion tion. We have no doubt that juries are often influthe testimony of a lawyer in favor of his client. * enced by extrinsic matters. We regret to say too, The very fullest freedom of speech within the duty of that there is reason to think that lawyers sometimes his profession should be accorded to counsel; but it do and say things for the purpose of producing an efis license, not freedom of speech, to travel out of the fect on the minds of a jury which is not legitimate. record, basing his argument on facts not appearing, Such conduct may afford ground for new trial if there and appealing to prejudices irrelevant to the case and is reason to suppose the jury has been influenced by outside of the proof.

it, as indeed the erroneous admission of testimony, In that case there was no retraction by counsel, and subsequently ruled out, may afford ground for a new no finding of the fact of a fair trial.

trial if there is reason to think the jury has been inIn Jacques v. Bridgeport II. R. Co., 41 Conn. 61, the fluenced by it. But the true mode of getting a new plaintiff's damages were aseessed by a judge without a trial on such ground is by petition addressed to the jury, certain evidence was admitted, subject to the discretion of the court, and not by bill of exceptions; defendants'" objection, to be heard in the argument.” for we cannot presume that the jury has been influAfter the argument, this evidence was ruled out enced, and in a bill of exceptions the court exercises and rejected, and no portion of it was considered by no discretion on matters of fact, but only grants a the judge, who so stated in open court when rendering new trial where in point of law some material error his decision." The court say: "Nor is the effect of has been committed. Unangst v. Kraemer, 8 Watts, this testimony upon the mind of the judge, in reach- & S. 391. The court does not get, by a bill of excepine the decision pronounced on the merits, to be en- tions, the information which will enable it to exercise tirely disregarded. We cannot accede to the claim of a judicial discretion. In the case at bar we are inthe plaintiff that the defendant could not have been formed only in regard to what occurred in the matter injured by this testimony because it was ultimately of the rulings which are reported for revision. For rejected and ruled out. The operations of our minds any thing that appears, the evidence against the deare mysterious even to ourselves. We cannot always fendant, independently of the evidence of reputation, appreciate the influences which lead us to a result. may have been utterly overwhelming, and there may No doubt the judge who tried the cause intended to be no foundation whatever for the supposition that disabuse his mind of any influence from this testi- the jury was influenced either by the evidence of repumony. No doubt he was unconscious of being affected tation or by the reprehensible remarks of the proseby it. Possibly he was not. Still we do not deem it cuting attorney." improbable that he was; especially when we look at In a capital case, if the prosecuting officer, having the amount of damages assessed in the case, which introduced a great amount of every kind of incompeseems to us unwarrantably large in view of the legiti- tent testimong, should at last meet repeated objection mate evidence."

by informing the jury, expressly or by insinuation, in In Dougherty v. Welch, 63 Conn. 558, 560; 8. C. ante, an observation addressed to the court, that he had a 704, the court say: "No man can be quite certain that convincing mass of similar evidence of the prisoner's he is aware of all the influences which have produced guilt, but would withhold it for the purpose of avoidconviction. It is one thing to prevent the entry of an ing technical exceptions, and for the same purpose influence into the mind; quite ar other to dislodge would withdraw what had been objected to, the withit.” But the court also say: “It would be impossible holding and withdrawing might be made an effective to conduct judicial investigations upon the theory that part of the State's case, and the life of the accused every thing which reaches the ear of the trier affects might be endangered by his exercising his right of ob. his final determination of questions of fact, beyond all jection. The law would not depend upon the motive power of resistance upon his part."

of the prosecuting officer; but having violated the Whether the final determination is thus affected is a right of fair trial, and necessarily assumed the affirmquestion of fact; and in our practice the rule is that ative and the burden of proof on his implied plea, in questions of fact are not to be settled at the trial confession and avoidance, that he had made complete term.

amends, his apparent motive, whether averred or inIn Stale v. Towler, 13 R. I, 661, 665, some of the cases ferred, might be important evidence an the question are cited in which it is held that an error committed of fact raised by the plea. by the admission of incompetent testimony is cured State v. Towler is an authority for a conclusive legal by its subsequent rejection or withdrawal, if the jury presumption, on a bill of exceptions, in such a case, are clearly directed not to regard it. “The ground of that the jury are not influenced by the illegal proceed. these decisions," say the court, “is that the testimony, ing if they are fairly instructed to disregard it, and after being rejected or withdrawn, is no longer legally for the rule that the defendant's remedy is a petition before the jury, but is out of the case; and the jury for a new trial. After judgment of conviction in a being instructed to disregard it, it is to be presumed criminal case. a new trial may be granted on the dethat they follow the instruction. The defendant con- fendant's petition, when justice has not been done tends that the rule ought not to be applied to the case through accident, mistake, or misfortune, and a furat bar, because the testimony was withdrawn, not as ther hearing would be equitable. Buzzell v. State, incompetent, but avowedly to remove all ground for 59 N. H. 61. In the present case the illegal proceeding exceptions. We think however that the rule does not occurred during the trial, and in open court; and if a depend on the motives which influenced the with- supplementary petition for a new trial is a possible drawal. The question is, did the withdrawal take the remedy, it is unnecessary. State v. Ayer, 23 N. H. testimony out of the case? If it did, it is to be con- 301, 320; Allen v. Aldrich, 29 id. 63, 75; State v.Knapp, sidered as if it had never been admitted. We think 45 id. 148, 157-160. In our simple and convenient systhe withdrawal, being by consent of court, it is to be tem of practice, if the indisputable error was barmregarded as the act of the court, and that in contem- less, that fact can be found on the plaintiff's motion plation of law it purged the case absolutely of the tes- at the trial term. The party violating the right timous. The defendant insists that the testimony, of fair trial accepts the burden of presenting and though withdrawn, must inevitably have had an in- proving his claim that he has made full restitution, fluence on the jury, and that this influence must have and that the decision of the jury was not affected by

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his admitted wrong. On the question of influence, hisceived, unless he is prevented by one of the excepted acknowledgment, retraction and apparent motives, perils. The plaintiff, in suing upon such a contract, is the instructions given at his request, and the verdict, obliged to say that that was the contract, and in pleadare evidence, but do not shift the burden of proof. ing be does aver, and must aver, that the loss was not That burden is not to be unjustly thrown upon the occasioned by any perils of the seas. I think that in other party, by putting him to a petition for a new pleading the plaiutiff always avers that to put himself trial; nor is his exception unjustly overruled by a con- within the terms of the contract. But it is immeclusive legal presumption as to the effect of instruc- diately apparent that the plaintiffs' allegation is a negtions. If a perfect reparation of the violated right is ative allegation. It is a negation of circumstances as not found as a fact, the injured party remains enti- to something which has happened on board the ship, tled to redress, and neither on exception nor on peti- and as to circumstances which are solely within the tion can the fact be falsely found by an inference of knowledge of the defendants. In my opinion, it has law. A discretionary power of compelling him to sub-| long been the usual and proper course for the plaintiff mit to an unfair trial is not vested in the court. What simply to put in the bill of lading and to prove that is called judicial discretion in such a case is a perform- the ship has arrived, but that his goods have not been ance of the duty of correctly deciding the question of delivered. If the ship has arrived and his goods have fact at the trial term. Bundy v. Hyde, 50 N. H. 116, not been delivered, it seems to me that by putting in 120; Darling v. Westmoreland, 52 id. 401, 408.

the bill of lading, he has shown a state of circumstanThe defendant is entitled to a new trial unless the ces which the shipowner is called upou to answer. plaintiff obtains an amendment of the record supply. | Prima facie, the von-delivery of the goods is negliing the fact that has not been found. If the plaintiff gence on the part of the shipowner, and unless there desires an opportunity to move for such an amend. were special ciroumstances to prevent him delivering, ment, the case will be continued nisi to await the re- there must be negligence on his part. Therefore I say sult of a hearing on his motion.

that the burden of proof which the plaintiff has taken Blodgett, J., did not sit; the others concurred. upon himself in the pleadings is satisfied by showing [See note, 48 Am. Rep. 336. --Ed.)

that the ship has arrived, and that the goods have not been delivered. In these circumstances devolves upon the shipowner to show the reason why he has

not delivered the goods, and if he can, to show that SHIP AND SHIPPING-PERILS OF THE SEA-COL- the non-delivery was cansed by one of the perils exLISION-BURDEN OF PROOF.

cepted in the bill of lading. If he shows that the

goods were lost or injured by one of the perils which ENGLISH COURT OF APPEAL, JUNE 8, 1886.

are specifically mentioned in the bill of lading, he has prima facie brought his case within the exceptions.

Now in construing a policy of insurance, it is the THE XANTHO.*

causa proxima of the loss which is looked at; but in In an action against a shipowner for loss of goods carried the case of a bill of lading that is not so, for there you

under a bill of lading containing the exception “ dangers look to what is the real moving cause of the loss. and accidents of the seas," the defendants do not, by Therefore though the shipowner may have brought merely proving that the loss has been occasioned by a hipiself within the terms of one of the exceptions, if collision, show a peril of the sea so as to shift the onus on the plaintiff can show that that which is stated to be to the plaintiffs of proving that the collision was occa- the cause of the loss was not the real moving cause, sioned by the defendants' negligence, the onus being upon but that something else which is not excepted was the them to bring themselves within the excepted perils; and real cause of the loss, then there is no defence; and if they fail to do so the plaintiffs are entitled to judg- therefore it has been held, that if the real moving ment.

cause is the defendant's negligence, the loss is not opinion states the case. The plaintiff had judg- caused by any of the excepted perils, because the negment below.

ligence of the defendant is not one of the excepted

perils. It is on that ground that the defendant fails, Sir Walter Phillimore, Q. C. and J. P. Aspinall, for

and not on any supposed reason that he cannot take defendauts.

advantage of his own negligence. The moment it is Myburgh, Q. C. and Hollams (with them Sir C. Rus- shown that the real moving cause of the loss was the sell, A. G.), for respondents.

shipowner's negligence, then that is a loss by a cause LORD ESHER, M. R. In this case the plaintiffs are

which is not within the excepted perils. Now supshippers of goods, and they bave brought an action

pose that the real moving cause of the loss is not one upon a bill of lading against the owners of the ship

of the excepted perils, but is the result of the neglicarrying the goods for non-delivery of the goods. At

gence of some one other than the defendant, does the the trial the bill of lading was put in, and in it we

same reasoning apply? You are to take the real movfind certain excepted perils. The case

ing cause of the loss. If you are to accept the reasontremely five by both sides, for all that appeared in evi

ing in the first case, you must accept it in this also. deuoe was an admission-it does not appear by which

There is no exception in the bill of lading of a loss side-that there had been a collision between the de

caused by the negligence of any one other than the fendants' ship and another ressel. The question is,

defendant. For that reason we held in the case of whether upon this evidence the finding of the learned

Woodley v. Michell, ubi supra, that if the cause of the judge without a jury is correct, by which he held that

loss was the negligence of either of two colliding vesthe plaintiffs were entitled to recover. From that judg. dinary difficulty of navigation contributing to the col.

gels without the winds or the waves, or any extraor. ment the defendants now appeal, and they say that they ought to succeed because the plaintiffs did not

lision, such a loss, the cause of which is negligence, is show that this was a collision which was caused by the

not a loss occasioned by any of the excepted perils. negligence of the defendants. Now let us see how the

We held therefore that a loss the immediate cause of matter stands. The contract, no doubt, is that the

which is a collision, but the real cause is the shipowner binds himself absolutely to deliver the negligence of either ship, is not a loss caused goods in the same condition in which they were re

by any of the excepted perils. It is caused by

negligence, and that is not an excepted peril. It is *55 L. T. Rep. (N. S.) 203.

not necessary to say whether any collision caused in

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any other way is within the excepted perils or not. If fine in merely showing that there had been a collision a collision was caused without any negligence on which is not an excepted peril, and which is as likely either ship, merely by the action of a storm or violent to bave been occasioned by negligence as by the action sea, or an unknowi current-if the collision is the re- of the wind or waves. I think that whether the desult of that which everybody would take to be a peril cision in Woodley v. Michell, ubi supra, be good law or of the sea, why then the mere fact of the collision in- not, and even if the House of Lords differ from it, the tervening would not alter the case, and the loss would defendants will be unable to succeed. For these be by a peril of the sea. There are also collisions oc- reasous I think this appeal must be dismissed with casioned by negligence and the action of the sea, costs. about which I decline to have any thing to say. 1 BOWEN, L. J. I am of the same opinion. This is an therefore bold that there are three classes of collisions action by a cargo owner against a shipowner. The in which tbe loss caunot be said to be the result of an shipowner having promised to deliver the goods exexcepted peril, viz., where there has been vegligence cuses himself by saying that the non-delivery was ocon the part of the carrying ship; where the collision casioned by an excepted peril. The bill of lading exhas solely been the result of the negligence of another cuses the shipowner in the case of acts of God, the vessel; and where the collision has been the result of Queen's enemies, a::d all and every other accident of the joint negligence of both vessels. That being so, the sea, rivers, and navigation whatsoever. what follows? Why that collision is not one of the In the case of Taylor v. Liverpool & Great IFestern perils excepted in the terms. The only way in which Steam Co., ubi supra, it was decided that it lay on the you can get the loss by collision covered by the perils shipowner to bring the loss within one of the excep. is to show that a peril excepted and not the collision tions, and though under the old forms of pleading was the real cause of the loss. Now in this case the prior to the Judicature Act it was proper for the plain. plaintiff shows that his goods were shipped under a tiffs to set out the bill of lading, and to negative that bill of lading. It is shown that the vessel carrying the the loss or damage was occasioned by this, that, or the goods sank. But you have something more than the other peril, yet that does not affect the law as to burmere 10-arrival of the ship, which is evidence that den of proof. Sir Walter Phillimore, on behalf of the she has foundered at sea; but you bave it that there shipowner, says that the plaintiff has at the trial, was a collision which was the immediate cause of the through the mouth of his counsel, admitted enough to loss. Now it is consistert that a collision is not one to shift the onus of proof. He says he has admitted of the perils excepted. But is a collision even prima that the loss was occasioned by a collision, and upon facie a peril of the sea? Is it more usual for a collision that he puts his argument in two ways: First of all, to be caused by the action of the wind and seas in an he says that the plaintiff, in admitting a collision, abpormal state than by the negligence of man? Cer- admits a peril of the sea, because all collisions are tainly not. No one can doubt that the very great ma- perils of the seas. In the second place, he says that jority of collisions are occasioned by negligence. Now even if collision does not necessarily amount to a peril we are asked to say that the mere fact of proring a of the sea, yet when unexplained, it is prima facie & collision is prima facie bringing the defendant within peril of the sea, and therefore throws the onus on the the perils of the seas. But in my view, that is not plaintiff of showing that in the particular instance the enough. Therefore it seems to me that here the plain- | collision was not peril of the sea-an onus which he tiff made a prima facie case, and that the defendants says the plaintiff has in the present instance failed to gave no answer at all which could absolve them from discharge. In the first place, is he right in saying that their liability under the bill of lading. The appellants a collision is necessarily a peril of the sea? We must have cited several cases in support of their contention). be careful to distinguish the meaning to be attached But in all those cases it will be found that there was to words like “perils of the sea" when we are dcaling evidence that the loss was occasioned by one of the with contracts of carriage between shipowners and perils expressly excepted. Of course if the shipowner shippers, and when we are dea ing with policies of incall show tbat the immediate cause of the loss was surance between underwriters and shipowners. Con one of the excepted perils, that is a prima fucie case fining ourselves for a moment to the case of contracts on the part of the shipowner, and throws on the plain- of carriage between shipowners and cargo owners, can tiff the burden of proof that the real cause of the logs it be said that a collision is a peril of the sea within was the negligence of some one, and not the peril the meaning of a bill of lading? Now a collision may which it is said was the cause. That was the case in be caused in different ways. There may be a collision The Helene, ubi supra. It was proved there that the caused by negligence on either ship, or by joint nego immediate cause of the loss was leakage, and by the ligence, and the sea may have no part to play in the bill of lading the shipowner was liable for loss caused misfortune, and the action of the wind and wares may by leakage. There the shipowner was prima facie not be the cause of the loss. We hare already prebrought within the exception, and the court held that cluded ourselves from saying tbat a collision caused the burden of proof was on the plaintiff to show that by negligence is a peril of the sea, because in the case the leakage was caused by negligence,

of Woodley v. Michell, ubi supra, this court held that In The Norway, Br. & L. 404, the loss was caused by where there is no possibility of the accident having tbe master jettisoning the cargo. The privy council arisen from the action of the wind or waves, and where were of opinion that the burden was upon the goods the cause of the collision is negligence, that is not a owner to prove that the strauding which necessitated

peril of the sea. That was one iustance in which a the jettison was occasioned by the shipowner's negli- collision was not a peril of the sea. After that case it gence.

is impossible for us to accept Sir Walter Phillimore's The case of Taylor v. Liverpool & Great West. Steam contention that a collision is necessarily a peril of the Co., ubi supra, seems to be an authority in support of sea. His second contention is that a collision until my proposition. Lush, L. J., there seems to put the explained implies a peril of the sea. But does that in very point with which we are now dealing. He says: itself throw the onus of proof on the plaintiff of show“The remaining question is, is it for the defendants or ing that the collision is not a peril of the sea? It is the plaintiffs to show that the loss is within one of the perfectly well known in the conduct of cases at nisi exceptions of the bill of lading--on whom does the prius what is meant by shifting the onus of proof. onus lie? I think it is for the defendants to bring the From time to time the onus of proof shifts according case within the exception.” I think therefore that in to the evidence given, and when you ask yourself this instance the defendants havo run their case too upon whom the onus of proof rests, you iu other words,

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ask yourself who will lose the case, according to and his wife, in Kiefer's private carriage, and at his
law, if no more evidence is given. Sir Walter Philli- invitation, the carriage was precipitated into a ditch
more asks us to hold that as soon as the attorney- or gully in the street, causing the injury complained
general admitted that this loss was caused by collis. of. The plaintiff was a sister of Mrs. Kiefer. The
ion, he bad admitted enough to shift the burden of ground of action is the alleged negligence of the city
proof on to his own shoulders from the shoulders of in respect to the condition of the street. The case
the shipowner, where it previously rested. Now in presented an issue as to whether Kiefer was charge-
my view, in order to bring the case within the excep- able with negligence in the driving of his team which
tions, the burden of proof, in the first instance, rests contributed to produce the injury.
upon the shipowner; and how has that burden been The court instructed the jury that if Kiefer was
shifted ? Now collision is a general term, and we chargeable with such negligence the plaintiff could not
are asked, without being allowed to look into the par- recover. The correctness of this instruction is the
ticular circumstances of this particular collision, to only subject which we shall have to consider. The
infer that it is more probable than not that it has oc- question is whether one who, by invitation or per-
curred in such a way as will make it a peril of the sea.

mission of another, rides in the private conveyance of
But there may be many cases where the collision has the latter, and which is wbolly under the management
been occasioned by joint negligence, or by the negli- and control of the owner, is affected by the negligence
gence of either ship; and the decision in Woodley v. of such owner, so as to prevent a recovery against a
Michell tells us that that is not a peril of the sea. Then third party for negligence.
there may be cases of collision in which ihere is negli- The authorities are somewhat in conflict. Since the
gence on the part of either or both ships, and a con- decision of Thorogood v. Bryan, 8 C. B. 115, it may be
tribution to the misfortune by the action of the wind said that the principle or reason upon which the de-
and waves. That class of case I now decline to dis- cisions have generally been based in England, in the
The authorities have not fivally exhausted the

case of injuries in public conveyances, is opposed to a inquiry whether such a collision would be a peril of right of recovery in such cases as this. In that case the sea. Lastly, there may be a collision which is the injury resulted to the plaintiff's intestate while he solely caused by the action of the wind and waves. It was a passenger in a publio conveyance, an omuibu may be a rare case, but it is a conceivable case. In all and the question was whether the contributory negliprobability, though I am deciding nothing more than gence of the driver barred a recovery in an action for is required for this case, it would in most cases be a negligence against the proprietor of another public loss caused by a peril of the sea.

What are we to say

conveyance. Distinctions might be suggested between when we are simply told that a collision has occurred? such a case and that now before us; but it is enough Why are we to infer that it is a peril of the sea, and for our present purpose to say that the reasons as, that it was occasioned by the action of the wind and signed for the determination in Thorogood v. Bryan, waves in such a manner as to bring it within the ex- and generally in the decisions which have held to the ception clause? It seems to me that neither as a mat- same doctrine of imputed contributory negligence, if ter of law por of common sense ought we to draw that such reasons are valid, might also be accepted as reainference. The answer of all common-sense people

sous for a like conclusion in this case. We therefore would be, "tell me more of the circumstances." With deem such decisions to be authority in favor of the reregard to what has been said about the cases of The spondent. Helene, ubi supra, and The Norway, ubi supra, I have The reason assigned for the conclusion that there nothing to add. I think the case of Woodley v. Mich- could be no recovery iu Thorogood v. Bryun is that ell, ubi supra, was rightly decided. It seems to me to "the deceased must be considered as identified with decide nothing more than what it is said to decide in the driver of the omnibus in which he voluntarily be. the head-note, and does not go the length which Sir came a passenger, and that the negligeuce of the driver Walter Phillimore sought to carry it. For these rea- was the negligence of the deceased." sons I think the appeal must fail.

lu a late case (Armstrong v. Lancashire & Y. Ry. Fry, L. J., concurred.

Co., L. R., 10 Exch. 47), involving the same question,
Pollock, B., referring to the decision in Thorogood v.

Bryan, said: “If it is to be taken that by the word
NEGLIGENCE CONTRIBUTORY NEGLIGENCE 'identified’ is meant that the plaintiff, by some con-
OF DRIVER OF PRIVATE CARRIAGE

duct of his own, as by selecting the omnibus in which INJURY TO GUEST.

he was travelling, has acted so as to make the driver

his agent, that would sound like a strange proposition, MINNESOTA SUPREME COURT, OCT. 1, 1886.

which could not be entirely sustained. But what I

understand it to mean is that the plaintiff, for the purFOLLMAN V. City or MANKATO,*

pose of the action, must be taken to be in the same One who while riding in the private carriage of another, at

position as the owner of the omnibus, or his driver." his invitation, is injured by the negligence of a third

In Prideaus v. City of Mineral Point, 43 Wis. 513, party (a municipal corporation), may recover against the

was presented the case of one (the plaintiff) riding in latter, notwithstanding the negligence of the owner of the a conveyance hired and driven by another person, and carriage in driving it may have contributed to produce injury to the plaintiff from the coucurrent negligence the injury, the plaintiff being without fault, and having

of the driver and of the defendant. The court denied no authority over the driver.

a right to recover under such circumstances. The reason upon which the decision is based will be seen

from the following extract from the opinion, in which Earth county, overruling motion for new trial.

reference is made to what may be distinctively called Daniel Buck, E. P. Freeman, and Pfau & Schessler, the Euglish rule, as above stated :

When the agency for appellaut.

of a person in control of a private conveyance is exJames Brown, for respondent.

press, there is no difficulty in the rule. The contribuDICKINSON, J. While the plaintiff was riding upon

tory negligence of the servant will defeat the master's

action for negligence against a third person; and it a public street in the city of Mankato with one Kiefer

seems that there ought to be as little difficulty in the *S. C., 29 Northwestern Reporter, 317.

rulo wheu the agency is implied only. One volunta

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