
    The Administrators of Isaac Perrin v. The Protection Insurance Company.
    In an action on a policy of insurance, it is no defense to show that the loss was occasioned by negligence in the agents of the insured.
    A loss of a steamboat, by explosion of the boiler, is covered by the policy.
    A new trial will not bo granted on the ground of newly discovered evidence, where such evidence is merely cumulative.
    
      This is a motion for a new trial, from the county of Hamilton.
    The suit was brought on a policy to insure one-half of three-eighths of “the hull, tackle, and apparel of the steamboat Moselle.” The risks described are those of “the seas, drivers, fires, enemies, pirates, rovers, assailing thieves, and all other losses and misfortunes which shall come to the damage of the said steamboat, according to the true intent and meaning of the said policy.”
    The declaration was in the common form, to which the defendants plead the general issue.
    At the trial, the interest of the assured, who was master of the boat, and the rights of the plaintiffs, were admitted. It was shown, that during the time covered by the policy, an explosion occurred by which the master and many others were killed and the boat entirely destroyed.
    The defense consisted in attempting to show that the loss happened from negligence of the master and-hands. A verdict was taken for the amount of the loss, under the direction of the court, and.this motion for a new trial is made for the following causes:
    1. Because the court did not permit the defendants to ask of experts the following questions :
    I. . If an explosion can occur when machinery and boilers are of good material, properly constructed, in good order, and skillfully and properly managed ?
    2. If an explosion arising from no known external cause be not evidence of negligence?
    II. Because the court did not instruct the jury that a loss, by the explosion of the boilers from an internal cause, is not covered by the policy.
    III. From newly-discovered evidence.
    Wrigiit, Coffin & Miner, and H. Starr, for defendant,
    in support of the motion for new trial:
    Upon questions of science or trade, or others of the same kind, persons of skill may speak, not only as to facts, but are allowed, also, to give their opinions in evidence. 1 Phil. Ev. 209.
    *Mr. G-reenleaf, in his late valuable treatise on Evidence, lays down the same principle, thus: “ On questions of science, skill, or trade, or others of the like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence.”
    
      Thus, the opinions of medical men are constantly admitted, as to the causes of diseases or of death, or the consequences of wounds, and as to the sane or insane state of a person’s mind, as collected from a number of circumstances, and as to other subjects of professional skill. And such opinions are admissible in evidence, though the witness formed them, not on his own personal observations, but on the case itself, as proved by other witnesses on the trial. But when scientific men are called as witnesses, they can not give their opinions as to the general merits of the case, but only their opinions upon the facts proved. Green-leaf’s Ev. 489.
    Folkes v. Chad, 3 Doug. 157; 26 Eng. Com. L. 63, is a leading case upon this subject. The trustees for the preservation of Well’s Harbor, being of opinion that a bank, which had been erected above twenty years, for the purpose of preventing the sea overflowing some meadows, which had descended to tho plaintiff, contributed to the choking and filling up of that harbor, by stopping the backwater, threatened to cut it down; on which, tho plaintiff applied to the court of chancery for an injunction. The court directed an action of trespass to be brought, to try whether the mischief the bank did to the harbor was a justification for the cutting, that thus the merits of the case might be decided by a jury. At the trial, the plaintiff called Mr. Smeaton, an eminent engineer, to show that, in his opinion, the bank was not the cause of the mischief. It was objected that this evidence was matter of opinion, and Gould, J., who tried the cause, rejected it, and the defendants had a verdict.
    On a rule for a new trial, Lord Mansfield said: “ The facts in this case are not disputed. In 1758, the bank was erected, and, soon afterward, the harbor went to decay. The question *is, to what was this decay owing? The defendants say, to the bank. Why? Because it prevents the backwater. That is matter of opinion. It is matter of judgment, what has hurt the harbor.
    “Mr. Smeaton’s opinion was deduced from facts not disputed; the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts, is, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands tho construction of harbors, the causes of their destruction, and how remedied. In matters of science, no other witnesses can be called. An instance frequently occurs, in actions for unskillfully navigating ships. The question, then, depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some brethren of the Trinity House. I can not believe that, when the question is, whether ¡1 defect arises from a natural or artificial cause, the opinions of men of science are not to be received. I have myself received the opinion of Mr. Smeaton, respecting mills, as a matter of science. The cause of the decay of the harbor is also a matter of science; and still more so, whether the removal of the bank can be beneficial. Therefore, we are of opinion that his judgment, formed on facts, was very proper evidence.”
    So a shipbuilder may give his opinion as to the seaworthiness of a ship, even on facts stated by others. Thornton v. Royal Exchange Assurance Co., Peake’s N. P. C. 25; Beckwith v. Sydebotham, 1 Camp. 117.
    Persons accustomed to observe the habits of certain fish, have been permitted to give in evidence their opinions as to the ability of the fish to overcome certain obstructions in the rivers which they were accustomed to ascend. Cottrill v. Myrick, 3 Fairf. 222.
    A practical surveyor may express his opinion, whether the marks on trees, piles of stone, etc., were intended as monuments of boundaries. Davis v. Mason, 4 Pick. 156.
    *It seems clear to us, from an examination of the foregoing and other authorities, that the question was a proper one. The opinion asked, it is said,, must be upon the facts proved in the cause, or such as are not disputed.
    It did not lie in the plaintiffs’ mouths to say that the machinery and boilers were not of good material, well constructed, and in good order, or that a crew was not provided, having competent, skill and care to navigate the boat. There was an implied warranty to this effect. The facts, therefore, embodied in the question, though disputed by us, in this particular instance of the Moselle, could not be questioned by the plaintiffs; they were bound to show them affirmatively. We had a right to assume them. But can a boat, having all these prerequisites, explode, with a gunpowder explosion, without some particular act of negligence ? It is difficult, perhaps impossible, to prove negligence affirmatively. Eew are left to speak of this disaster, and.none have survived it who would have been most likely to know the facts which transpired immediately preceding the explosion. How it came about is matter of opinion. Men of science, and men of practical skill and experience in the structure and management of the steam engine, alone can tell; and, we affirm, such is the nature of the subject, that their opinions are absolutely conclusive — as certain and satisfactory as the opinion of a medical man, as to the cause of the death of a person, in whose stomach, upon a post-mortem examination, he had found a quantity of arsenic.
    On the trial, it was said, the opinion sought was as to tho very question the jury were to try. Was this so? It does not differ, in this respect, from the cases cited. If answered in the negative, it establishes that there was negligence; but, so in the case of the «embarkment, if the opinion had been that it was the cause of the harbor going to decay, it would have been equally decisive of the result in that case.
    The plaintiffs affirm, the boat was completely manned, the boilers, machinery, etc., well made and in good order, and that there was no want of skill and care; and notwithstanding an explosion, the most appalling and disastrous in tho history of %team navigation, takes place without any external cause to produce it. Tho -defendants call upon men of skill and science to say, if, under such circumstances, the facts being so, an explosion could have taken place. And we know, from what occurred on the trial in tho court below, that each witness would have answered, unhesitatingly in the negative.
    The Recond proposition is, that if the explosion of boilers pro•ceed from an internal cause, it is, of itself, prima facie evidence of a want of proper care and attention on the part of those having the management of the boat.
    
    If a stage-coach bo upset, and a passenger injured, proof of these facts alone establis hes, prima facie that there was carelessness, or negligence, or want of skill, on the part of the driver, and throws upon the defendants the burden of proving that the accident was not occasioned by the driver’s fault. Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Pet. 190; McKinney v. Neil, McLean’s C. C. 540.
    We do not find the reason of this rule given in any of the cases, but it is evident it is upon the ground that the coach is staunch And strong — roadworthy; that the horses are gentle, manageable, and properly harnessed; and that the driver has the requisite skill and prudence to guide them along the road with safety to the passengers. Such is the understanding of those who trust themselves to stage conveyance. There is an implied warranty to this effect; and if any accident occurs, it is out of the usual course of things, and for the proprietor of the coach to explain and reconcile with his obligations to the passengers. So, in our opinion, is the rule, and for a better reason, in case of loss or injury from explosion of boilers. In the latter case, there is also an implied warranty, that the boat is, in all respects, seaworthy.
    A steam engine, properly constructed, is entirely within man’s control. Such is the common sentiment. Did not men think so, they would as soon embark on a floating volcano as on a steamboat. But this idea of security does not rest on common opinion, merely. It is a matter of science. The laws of steam are as well understood as the laws which regulate *anv other power. Such is the testimony, both of scientific men and experienced practical engineers. It has been satisfactorily ascertained, by scientific experiments, that, when the temperature in the boilers is 342 degrees, the expansive force is 120 pounds to the square inch, which is regarded as the limit of safety with common western boilers; and every time about forty or fifty degrees of heat are added, the expansive force is doubled. 472 degrees of heat produce 525 pounds of pressure, which is regarded the point of unavoidable bursting of common western boilers.
    Boilers are now gauged at about ninety-six pounds, by the best and most skillful manufacturers; that is, the safety valve is so adjusted, that, with a pressure of ninety-six pounds to the square inch,it will rise and let the steam escape; and this result is as unerring as the law of gravitation, if the valve is left free to act as adjusted by the maker. This is far within the limit of safety; and yet experience proves that such degree of heat and pressure will gender as much steam as can be worked off in common cylinders, and that all beyond is useless. The rule for ascertaining the strength of the boilers, is to multiply twice the thickness of the boiler iron, in inches, by 60,000, and divide the product by the diameter of the boiler, in inches; the quotient will be the utmost which a perfect boiler, made of the best iron, will bear to the square inch. But it should never he used with one-fourth of this. The gauge-cocks will always indicate, with sufficient certainty, to the practiced engineer, the height of the water in the boilers. Thus, by means of the safety valve and the gauge-cock, the engineer is-enabled, at all times, to know where the limit of safety is, and when it is departed from. Explosions are, invariably, produced, either by a pressure greater than the strength of the boiler iron, undiminished by heat, can bear, or from permitting the water to get too low, the flues bare, overheated, and so weakened that they are unable to resist more than the ordinary pressure. But an explosion, in either way, presupposes negligence. It may be difficult to determine in which of these *modes an explosion hasoceurrod; and, as to this, men of skill and science may differ, as they did on the trial of this cause. Therefore, we repeat, that the presumption of negligence is much stronger in case of an explosion, than in case of the upsetting of a stage.
    Roads are not always smooth and level; ruts may be worn deep, and the horses may become restive, or may take fright; they have a will independent of the driver; but the steam engine has no will, and can not be frightened: it operates by fixed and well-known laws, from which it never deviates. Of all the great moving powers, it is the most completely manageable. Gravitation can not. be controlled; the wind may swell to a hurricane, which can not be resisted; animal strength may rebel against its commander, but steam, however vast its power, may always be kept under perfect obedience. A child, when instructed how, could manage thei mightiest engine ever made. Unless, therefore, an explosion bet accounted for from some external and unavoidable cause, the presumption of negligence is irresistible. .
    The third reason assigned for a new trial is, because the court refused to charge the jury, as asked by the defendant’s counsel, that the explosion of the boilers, from an internal cause, was not an accident within the terms of the policy, or covered by it.
    
    The insurance was taken in terms, upon the “ hull, tackle, and. apparel.”
    The risks insured against are, “ of the seas, rivers, fires, enemies, pirates, rovers, assailing thieves, and all other perils, losses, and misfortunes which shall come to the damage of the said steamboat, according to the true intent and meaning of this policy, as herein expressed
    
    The words are the same which have been used for ages, long-before the steam engine was known. They had received an established construction before this new peril became possible, and, therefore, this would not be included without special mention. The insurance is not taken, in terms, upon the boat or the engine; explosion is not one of the enumerated perils. *The only enumerated perils which could, under any circumstances, include this, would be of “ rivers or fires.” The peril of fire is well understood to mean burning up, not exploding; for fire is no more the cause of explosion than water is. Both must concur with other causes; and with as little propriety can explosion be called a peril of the river. It is a peril of steam, wherever used, on land or water. Snagging, sinking, collision, and the like are perils of the river, and were so before steam was known. But as well might fire be called a peril of the river, because it occurs on the river, as to say that explosion is, for the like reason.
    It may be said, however, that explosion comes within the phrase, '“and all other perils,” etc. The general rule of construction is, that whenever an enumeration is attempted, all particulars not enumerated are excluded. A specific enumeration of rights or duties can not be enlarged by subsequent general terms in the same instrument. But the policy itself settles the question, for it confines these other perils to such as may happen “within the true intent and meaning of this policy, as herein expressed.” In other words, all losses and misfortunes, which may result from the enumerated perils, are covered by the policy, whether they be direct or consequential, but no other. And this is the opinion of Kent, 3 Com. 299. We conclude, therefore, that the peril of explosion, being a new peril, peculiar to steam, is not within the policy, unless specially mentioned. And, in this conclusion, we .are strengthened by the fact, that no case can be found in the books where it has been held that a loss by explosion was covered by the policy.
    The only case we are now aware of, where this question has been determined, was that of Rogers and Shrewsbury v. These Defendants, which was arbitrated and decided in 1829, by Charles Hammond and Henry Starr, Esqs. In that case, the insurance was upon the “boat, her hull, engine, furniture, tackle, and apparel.” The risks specified were the same as in the present case. The arbitrators determined, upon full, ^argument, that a loss by explosion, from an internal cause, was not covered by the policy.
    
      The fourth and last ground for a new trial is, “on account of material evidence discovered since the trial, as set forth in the affidavits of C. S. Pomeroy and E. Robbins.”
    
    Since the trial, the deposition of the witness referred to in the affidavits of Mr. Pomeroy and Mr. Robbins has been taken and filed with the papers, and will be before the court. We therefore submit this last reason without argument.
    We are apprised that, in this case, an effort will be made to induce the court to reconsider and disaffirm the rule heretofore established, and so often affirmed, that in case of loss resulting from the negligence of the master and mariners, the underwriters will not be held liable.
    This will be urged upon the authority of the decision of the Supreme Court of the United States, in the case of Waters v. Merchants’ Louisville Insurance Company, 11 Pet. 213, reported since the decision of this court in Fulton and Foster v. Lancaster Ohio Insurance Company, 7 Ohio, 5.
    We shall not review the authorities bearing upon this vexed question. Nothing, perhaps, except what may be peculiar to this case, can be added to the argument of counsel, and the lucid and very able opinion of this court above referred to.
    In our judgment, the correctness of that decision, upon principle, is not shaken by the reasoning of Mr. Justice Story, in the case in 11 Pet. The weight of authority, too, upon the precise question, is on the side of the decision of this court. For, let it be borne in mind, that the question is, whether in a marine policy, which does not contain a clause against barratry, negligence will excuse the insurers; and there is not a single decision upon such a policy, except the one in 11 Pet., and one by the same judge on the circuit, reported in September No., 1842, Law Reporter, 200, where it has been held that negligence did not excuse. It is desirable that the decisions of the Supreme Court of the United States, and those of the state courts, should harmonize upon questions of this sort. But it is quite as desirable, that rules of law should be established *which will stand the severest scrutiny of enlightened reason, and the test of experience, and we are constrained to say, highly as we appreciate the character of the judge, who delivered the opinion of the court in the case in 11 Pet., for legal learning and sound judgment, that we do not think the rule there laid down will stand either of these tests. Therefore, we are disposed to request the Supreme Court of the United States to reconsider their opinion, rather than ask this court to recede from a rule, as we conceive, correct in principle, and most salutary in its operation, by mere force of a superior tribunal.
    The doctrine that a loss, the proximate cause of which was a peril insured against, though remotely occasioned by the negligence of the master and mariners, is covered by the policy, is of recent origin in England, and expressly on the ground that barratry was insured against. Liability for a loss by the barratry of the master and mariners was, so to speak, father to liability for loss remotely occasioned by the negligence of the master and mariners.
    Now the gist of barratry is the willful misconduct of the master and mariners. The owner of the vessel has exorcised his best judgment in the selection of a master and crew. He has complied with his implied warranty in this respect, but he can not penetrate the secrets of the heart; he has no spear of Ithuriel with which to try them; he can not measure their strength to resist temptation; their fidelity may be seduced. After he has done all that he can do, there is a risk that his servants may prove dishonest. This risk he insures against. So the master and mariners, selected in like manner by the owner of the vessel, may sometimes prove negligent or unskillful, and from such negligence or want of skill, loss may result. True, the owner impliedly warrants that a careful and skillful master and mariners shall be placed in charge of his vessel; but, after all, they may not prove so; there is risk in this respect also; and if, as in the case of barratry, the policy expressed that it should be borne by the insurer, there would be no cause to complain. But to impose this risk when not ^expressed, upon the insurer, seems to us strange and'unjust, and the reason given for it in the English decisions, because barratry is expressly insured against, strikes us as somewhat absurd. But if negligence does not excuse the underwriter, whose negligence? As in case of barratry it is the acts of the master and mariners that are insured against, so in case of negligence, we affirm from analogy, as well as upon principle and authority, it is the negligence of the master and mariners, not the negligence of the insured.
    
    Judge Story, in the case reported in September No. for 1842 of Law Reporter, 203, says, “The owner can, in most cases, be in no better condition to guard himself against a loss by the negligence of his agents, than he is to guard himself against a loss by accident or irresistible force. Ho does not warrant the fidelity of his agents, but merely their capacity and ability.” The import of this language can not be mistaken. A man should no more be permitted to insure against the effects of his own willful misconduct, than against that which will be imputed to mero negligence.
    A contrary doctrine strikes away, at once, all distinction between the skillful and unskillful, the careful and the rash; breaks down all incentives to good conduct, and leads to endless frauds.
    An individual commanding his own boat (and it often happens, on our rivers, that the same individual is commander and owner), gets her insured at a high valuation, and upon long time, and just before the policy expires, when the boat is worn out and worthless, commits some act of negligenco, purposely, perhaps, by which she is lost, and thus pockets the insurance.
    Isaac Perrin, the plaintiff’s intestate, was the owner of three-eighths of the Moselle. The policy upon which this suit is brought, was upon a portion of his interest. He was on board, and in command at the time of the disaster, and, as the defendants claim, it was through his gross negligence or want of skill and prudence, that the loss occured. He it was that told his friends he had raced with the Ben Franklin coming up, and had been beaten, because his boilers were filled with ^Mississippi mud. That his boilers had been cleaned, and he intended to beat the Franklin or blow his boat out of the water. His boat was his continual boast. In the language of a number of the witnesses, “ he seemed infatuated in reference to it.” He had bad a convivial meeting of his friends on board ¡ immediately preceding his departure from the wharf, on the voyage so speedily and fatally terminated. Ho had told those friends, and others, through the city, to look out during the afternoon, and they would see a boat go by the city as boat had never gone. These and many other acts and declarations, evincing the extreme of rashness and folly, immediately preceded the explosion.
    If there be any case on a marine policy where it has been held that the insurers were liable, though the loss was occasioned by the negligence of the insured, we have failed to find it. We affirm there is no such decision.
    It is said that loss is to be attributed to the proximate cause, and not to the remote cause. In all the cases the negligence was the remote cause, but the proximate cause was a peril insured against. Now we insist, in the present case, that the negligence or rashness was not remotely the cause of the loss, but actually concurred as an .efficient agent, with other agents, eo instanti, when the explosion took place ; and that, therefore, this case is not within the rule.
    We also submit, whether, if the rule of the Supreme Court of the United States is to prevail, the insurers are to be held liablo for every degree of negligence ; for instance, gross negligence.
    If this court should be induced to overrule their former decisions, and adopt the rule of the Supreme Court of the United States, •still we insist for reasons which, we trust, have been made sufficiently apparent, that the rule is not applicable to this case. But we sincerely hope the rule of the Supreme Court will not prevail here. Upon the broad ground of public policy it ought not to prevail. It is not adapted to the spirit and character of our people, especially that portion of them engaged in the navigation of our western and southern rivers. *There is a degree of enterprise and fearlessness about these people that can not be kept in proper chock by the fear of personal danger, or out of regard for the safety and lives of others. Leave the pecuniary risks incident to the carelessness, or recklessness, or want of skill of these men, to be borne by the owners of vessels, and they will exercise .greater care and understanding in the selection of agents, and the standard of attainment will be elevated. Lay these risks upon the insurers, and the spirit, if not the language, will be: go ahead; the insurance company takes the responsibility l We fear the effect of such a rule.
    Charles Fox, for plaintiff, argued against the motion :
    The plaintiffs insist an explosion may take place without fault on the part of the officers. But they also insist that mere negligence, on the part of the plaintiffs, or their officers and men, does not discharge the insurer. If the direct occasion of the loss is one of the risks insured against, as fire, a peril of the river, etc., it matters not what may be the remote cause, whether it be negligence, the want of foresight, or anything else not amounting to absolute fraud, the insurer is liable.
    If, therefore, mere negligence is not sufficient to discharge the underwriter, it is clearly immaterial to inquire as to what amounts to prima facie, and what to conclusive evidence of the fact of negligence. I claim that in no case can the insurer discharge himself from responsibility by showing that negligence was the remote cause of the loss; and, if this is a legal proposition, then there is no doubt of the correctness of the charge of the court.
    By a series of decisions, made in the Supreme .Court of the United States since this question was first agitated in that court, it is now well established that, “ in marine policies, whether containing the risk of barratry or not, a loss, whoso proximate cause was a peril insured against, is within the protection of the policy; notwithstanding it might have been occasioned, *remotely, by the negligence of the master and mariners.” 11 Pet. 224.
    The eases which had, before this last decision, been considered as establishing this doctrine in the Supreme Court, will be found in 3 Pet. 222, and 10 Pet. 507.
    The case in 11 Pet. 224, is directly in point. It was the loss of a steamboat by explosion, caused by the carelessness of the officers and crew, in setting fire to the gunpowder aboard the vessel. The court decided negligence to be no excuse to the underwriter-judge Story, in delivering the opinion of the court, has examined all the cases on the subject, and has made a masterly argument, which leaves nothing to be said on the subject. The doctrine has been again asserted by the judge, in Hall v. Washington Insurance Company, September No. Law Reporter, 1842, p. 201; so that, 30 far as the decisions of the Supremo Court of the United States are concerned, this question is finally settled.
    I am aware this court has held a different doctrine, in several cases, after lull argument in bank. But, I think, since the decision in 11 Pet., I am not asking too much of this court, when I urge them to reconsider their own decisions on this subject. In questions of commercial and insurance law, it is very desirable that the decisions of our courts should be uniform; and the decisions of the Supreme Court of the United States, when made ought, in such questions, to be held binding on the state courts. It is not likely that, on such questions, with the assistance of the ablest lawyers in the Union, the opinion of that court would be far from right. But the advantage of a uniform rule, on these questions, is as important as that the decision itself should be right.
    I take it' for granted, from expressions made use of by this court, in several cases, that it is desirous of following the decisions of the Supreme Court of the Union in questions of this kind. In reviewing the decisions of our own court, we find that, in the case of Lodwick v. Ohio Insurance Company, 5 Ohio, 436, on the circuit, the judges held that the negligence *would not discharge the underwriter; but, in court in bank, the court decided otherwise.
    In 7 Ohio, 25, it was supposed by Judge Grimke, that the Supreme Court, in 10 Pet. 508, did not intend to decide this question; that the remarks made on the subject, in that case, were extrajudicial; and yet we find, in 11 Pet., the court does consider' that the very question had been decided in 10 Pet., and that a more full examination had confirmed them in the opinion then-expressed.
    It appears to me that the judges, who have held that the negligence of the officers and men, employed on board an insured vessel, releases or discharges the underwriter, have not sufficiently distinguished between the implied warranties which attach to, and form parts of the policy and cases of mere neglect.
    It is well settled that there are implied warranties in every' case of insurance; and that if these, or any of them, are not complied with, the policy is void; such, for instance, that the vessel is seaworthy. 1 Phil, on Ins. 249, 309.
    This warranty of seaworthiness requires the vessel to bostaunch, and of sound materials; well provided with men and provisions; captain and officers of the usual skill, ánd general good character. Where it is customary to take a pilot on board,, the vessel is not seaworthy without one, if to be obtained. 1 Phil. 308-316.
    I admit that, if any of these implied warranties are not complied with, the insurers are not liable, because the contract is not-complete, and the risk never attaches. But it is equally clear, that if the vessel is seaworthy, at the commencement of the voyage, this implied warranty is complied with. But I will not fatigue the court by arguing this question, as I am aware that the-attention of the court has been heretofore often called to it. I rely upon the decisions of the Supreme Court of the United States, as having settled the law in the cases referred to; and,, secondly, upon the necessity of having a uniform rule on this subject, as sufficient inducements for this court to review its former decisions, and conform to the decisions *of the federal courts, even if they continue to doubt the correctness of the latter decisions.
    But I am not willing to admit that this loss was occasioned by negligence; on the contrary, I insist that no negligence was shown at the trial.
    It will be remembered that, in all cases, when negligence is set' up as a discharge of the underwriter, the fact of negligence must be clearly proved. It is not to be left doubtful, but must be as fully established as the plaintiff’s cause of action. 2 Phil. Ins. 759, 760.
    So, if the defendants insist that the vessel became unseaworthy at a certain period, it is a fact to be proved by the insurer, because the law presumes a continued seaworthiness. So, if deviation is alleged, it must be proved. Ib.; 4 Mason, 440.
    If we refer to the evidence, I insist there is no evidence of negligence or carelessness. It is not pretended there was any other evidence or negligence than a desire, on the part of the captain, to make a quick trip, and what might be imagined or inferred from the fact of explosion; whether this was occasioned by keeping the steam too high, by the want of water, collapsing of the flue, defects in the machinery undiscovered, was a matter of great doubt and uncertainty among the witnesses; and the most learned men, those most scientific, appeared to differ most in their views of the cause of the disaster.
    The fact is, the powers of steam are not yet fully developed. The accidents, continually occurring, seem to baffle the calculations of the most skillful; and while this is the case, surely the steamboat owner is not to be charged with negligence, merely because no one can account for the accident..
    All that is required, on the part of the owners, is that they shall employ men having the skill usually expected of men in that particular business in which they are employed. 4 Mason, 440.
    It is also claimed that a loss, by the explosion of the boilers from an internal cause, is not a loss within the terms of the policy.
    *1 should as soon think of saying a loss occasioned by the wind was not a peril of the sea, when applied to a sea vessel propelled by wind. But let us look at the risks insured against. These are the risks of the river, fire, pirates, etc., and all other perils, losses, and misfortunes, which shall come to the damage of the steamboat, according to the true intent and meaning of the policy (except losses in money, notes, and evidences of debt).
    In construing this policy it must be kept in mind that the subject insured is a steamboat, and that the risk of navigating a steamboat on the Ohio river is intended to be insured against. One of the risks of the river is the running against snags, or against rocks, or running aground. Another is, of being injured by collision. Neither of these particular risks is especially named in the policy, but it is known they are all risks that every steamboat has to run in the ordinary course of navigation, and therefore are called perils of the river*. So of a vessel propelled by wind.
    We are not to expect that every engineer has a perfect philosophical knowledge of all properties and powers of steam. We are bound to have such engineers and officers as are usually employed in the particular trades, not the very best engineers that can be found in the world. “ If it were the usage to employ masters not skilled in navigation, a vessel would be seaworthj" with only such a one.” 1 Phil. Ins. 312, and causes cited.
    Now, in this case it was proved our engineers, officers, and men were all good, and no particular act of negligence was proved, and, of course, the defense of negligence was not made out.
    If a sailing vessel has' too much sail set, a gust of wind, may throw her on her beam ends, and occasion the loss of the vessel. This loss is not specified in the policy, but it is deemed a peril of the sea, and covered by the policy.
    A vessel propelled by steam has to make use of boilers and fire in order to generate the steam. One of the risks attending the generating of steam in boilers is the bursting of the *boilers, caused by a collapsing of the flue, or, if you please, by so increasing the heat as to create an expansive force or pressure of the steam greater than the boilers will bear. Is not this bursting one of the perils attending the navigation of the river ?
    “ The general rule is, that the insurer charges himself with all the maritime perils that the thing insured can meet with on the-voyage.”
    “ The policy sweeps, within its inclosure, every peril incident to the voyage, however strange or unexpected, unless there be a special exception.”
    The perils enumerated in the common policy are sufficiently comprehensive to embrace every species of risk to which ships -and goods are exposed from the perils of the sea, and all other causes incident to maritime adventures. S Kent’s Com. 291.
    “Under the perils of the sea, which constitute a part of the .risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other vessels, and, in general, all causes of loss and damage to the property insured, arising from the elements, and inevitable accidents, other than those of captures.” 2 Phil. Ins. 635.
    Under the term, perils of the river, therefore, I insist, a loss by the explosion of the boilers must be included. The boat is expected to be propelled by steam, and one of the risks of using steam is explosion. In the language of Lord Mansfield,. “ the means must be taken to be insured, as well as the end.” 1 Bur. .348.
    Again, the clause by which the owner is insured against — “all other losses and misfortunes which should come to the damage of said steamboat” — covers the loss by explosion.
    Now, it is admitted that the whole instrument must be taken together in giving it an interpretation. This clause means something, and, it is said, “may have the effect of extending reasonable indemnity to many eases not distinctly covered by the special words; they are entitled to be considered.as material and operative words, and to have their due effect assigned *to them in the construction of this instrument, and which will be done by allowing them to comprehend and cover other cases of marine damage, of the like kind, with those specially enumerated, and occasioned by similar causes.” 2 Phil. Ins. 688; 5 M. & S. 461.
    This clause, then, may be said to cover other losses not enumerated in the policy, provided they arc occasioned by the perils incident to the business. Wo must take a common-sense view of the question in this, as in all other cases, and not be seeking after technical excuses. As the ingenuity of man is continually contriving new means of effecting the same object, whether it is in propelling boats, or performing any other useful act, we must consider these new means of obtaining the same object, as embraced in every contract made, in which their use is fairly expected.
    And such has been the decisions and practice of the courts. Thus, we find, in Ellery v. New England Insurance Company, 8 Pick. 14, where a ship had been hauled out on a marine railway to be repaired, and, while being hauled, fell over on her side. It was held, that although his mode of repairing was of modern origin — indeed, had been introduced after the policy had been signed-yet, as the railway had been tested again and again, was in common use when the ship was placed upon it, the court decided that the loss came within the description of “ all other losses,” and that the parties might reasonably be supposed to contemplate, that the most approved means should be employed in repairing, as well as in the management of the ship ; and that, as the ship was within the protection of the policy when repairing, “ the means must be taken to be insured as well as the end.”
    But, in the present case, I suppose, as, in the ease in 11 Pet. 224, the explosion was caused by fire, the latter was the proximate cause of the loss, and the policy, therefore, covers this loss by the express terms of the policy.
    Since the foregoing was written, I have seen the argument of the defendants’ counsel, and have nothing to add to what I have already said on the subject before discussed. But, on *the argument of the defendants’ counsel, as to the refusal of the court to permit the question, as to the opinion of the witness, to be propounded, I have a few remarks to make.
    The defendants’ counsel, in attempting to sustain the right to ask the question propounded, place it on the ground that it is a question of science or skill, and that, therefore, persons of science and skill may answer by giving an opinion. I do not so consider this matter.- In the first place, when the opinion of a man is asked, instead of facts, that opinion is received upon the supposition that there is a difficulty in making a full explanation of the particular facts to the jury, because they are so connected with the particular science as not to be easily understood, except by persons learned in the science, and hence opinion is substituted for facts. “ The rule is confined to cases in which, from the very nature of the subject, facts disconnected from such opinions can not be so presented to a jury as to enable them to pass upon, the question with the requisite knowledge and judgment.” 7 Wend. 78.
    But it must be recollected, also, that persons of science, etc., who give their opinion, are bound to disclose the facts upon which they are based; and even a physician, although upon facts testified to by others, may give an opinion that the wound, etc., was capable of producing death, yet he can not be asked for hie opinion of the whole case, or whether the accused was the cause of the crime, etc.
    So the opinions of witnesses as to the improbability of a blow-having been given from which death ensued, judging from the relative positions of the parties, as stated by witnesses, are not admissible. 19 Wend. 569.
    If we look at the question propounded, we shall see that the whole object of it is to ascertain the opinion of the witness whether there was negligence in the management of the boat. This is the naked question, when stripped of the artful mauner of propounding it. Let us put the question directly to the witness, and it will be in these words : Do you think this loss would have taken place if the managers of the boat had not been guilty of negligence? Suppose the answer to be no; *then the question would be asked, why do you come to that conclusion? And the answer would be, in the language of the interrogatory, be cause if the machinery and 'boilers be of good material, properly constructed, and in good order, and managed with skill and care, an explosion can not take place. So that every one must perceive that it is really asking the opinion of a witness as to the whole case. There is not a case to be found giving countenance to such an interrogatory. Its object is to induce the jury to adopt the conclusions of witnesses, instead of their own, and there was not a man on the jury who could have answered the question as well as a scientific man. There is no case where an insurance office might not avoid paying a loss, if negligence was to be proven by such sort of testimony. There is no loss happens, probably, without some fault, negligence, or risk run. A boat, by laying by all night, might avoid running against a snag, which could be seen in the day-time, although not at night. A boat is run aground, and yet, if the pilot had taken the precise place, where the water was deepest, he would not have grounded, and it was carelessness in him not to have taken that particular spot. A steward or servant has left a candle burning, and it has by some means set the boat on fire. The office says this was a careless act, and wo •are not bound, because if the boat was sound, managed with skill and care, the fire could not have taken place. So an engineer accidentally falls asleep, and by some means the supply-pump gets out of order, and no water is forced into the boilers, in consequence of which the steam gets highly heated and the boilers burst. The office say there would have been no lo3S if the engineer had not fallen asleep, and it was a careless act in him to do so. Now, it is admitted in the defendant’s argument that the insured is only bound to select ordinarily careful men to control his boat; but, according to this mode of proving negligence, he is made responsible for the very slightest degree of carelessness. There is no view of the case in which such a question can be tolerated.
    *As to the newly-discovered evidence, I have not seen any. The affidavits made at the trial, by Mr. Robbins and Mr. Pomeroy, only showed that, by proper diligence the defendants could have accumulated more testimony; but that is no ground for a new trial. I have not taken the trouble to examine the depositions, because I suppose the defendants had no authority to take such testimony, unless by consent; and also because I suppose it is merely cumulative testimony.
    On the whole case, I think it was evident to the court that the plaintiff ought to recover. There was no act of negligence shown; that the captain was proud of his boat; that he made foolish brags of what he could do with her, and really believed he had the best boat, and the fastest boat, on the river, I am willing to admit; but that he, or his engineers, were guilty of negligence, I deny. The defense of negligence, then, ‘has not been proved. To say the most of the defense, it has left it doubtful whether there was negligence or not; but that js not sufficient, and therefore the plaintiff ought to have judgment.
   Lane, C. J.

The newly-discovered evidence is cumulative only. At the trial it was shown that preparations were made, before starting, to overtake another boat; that fires were kept burning with great fierceness ; and that the boilers had become very hot;. that the escape of steam was attended with a peculiar shrill noise, denoting great pressure, and so loud as to awaken notice and. alarm. The new evidence is the testimony of a witness who,, going on board, was terrified by the violence of the fires, the intensity of the heat, and the glimmer from the ascent of heated air, “ which seemed to make the boilers creep and move in their beds,” and goes little further than to furnish additional evidence of facts-already before the jury.

That a loss arising from an explosion of the boiler is covered by the policy, seems plain to us, when we consider the subject insured, and the nature of the risks to which it is of necessity exposed. The insurance was on a steamboat. The policy is in the form which has long been in use for marine *risks, and the words which describe the perils are largo enough to embrace all such as arise in the ordinary use of the thing insured. A policy on ships covers losses arising from accidents to the power which moves them, and it must bo presumed that the parties contemplated the same protection to a steamboat, when the loss occurs to her motive agencies.

The other causes for which the new trial is asked depend upon the right of the defendant to use the negligence of those managing the boat as a defense against this liability.

This point first came before this court in 1832. Lodwick v. Kennedy, 5 Ohio, 433. The business of insurance at that time was new in the western waters, and had rarely been the subject of investigation in our tribunals. The court, of which I was then a member, found the rule exonerating insurers from losses arising from the negligence of master and mariners, established in New York. Goix v. Law, 1 Johns. 346; Vos and Graves v. The United States Insurance Co., 2 Johns. 187; Grim v. Phœnix Insurance Co., 13 Johns. 457; and countenanced by such English authorities as were within our roach, and in entire correspondence with that gcnei’al principle, which makes the act of the servant the act of .the master.

In these earlier cases no distinction seems to have been taken Between losses which arise from the want of capacity and skill, and those which are the results of mere carelessness. The former class .are never covered by the policy. But there has been, through the recent jurisprudence, especially through a series of cases decided since that, in 5 Ohio, a modification of the rule, and a disposition to extend the responsibility of the insurer to the latter class of risks. The English cases may be found in 2 Barn. & Ald. 73; 5 Ib. 171; 5 Barn. & Cres. 219. The same charge has prevailed in the United States. It is recognized with favor in Patapsco Insurance Co. v. John Coulter, 3 Pet. 222; Columbia Insurance Co. v. Lawrence, 10 Ib. 517, and in some circuit court decisions; and is finally accepted in 11 Pet. 205, by the Supreme Court, as a well-,established principle of the law of insurance.

*While this doctrine was assuming this form, and before it became an admitted principle of our commercial jurisprudence, it was again before this court, in Fulton & Foster v. Lancaster Insurance Company. I entirely concurred with my brethren in the opinion that no propriety was, at that time, shown for changing our position, as the new rule had not been then sanctioned by the direct authority of any ultimate American court. This uncertainty is distinctly dwelt upon by the judge who reported that case. The decision since made, in 11 Peters, 205, has supplied a precedent, of the most weighty character, settling the law, in the federal courts, in a manner likely to be followed in the courts of these states, where the law merchant is best understood.

The present case distinctly lays before us the propriety of noio adhering to our former decision. This is not a question of local law, springing from our own fountains of jurisprudence only, but a general commercial principle, resting on broader foundations, which ought to be uniform among all civilized nations. When the law of insurance has, in its fuller development, received an important modification, in the English and federal courts, and which, probably, will be the rule of the state courts, as fast as they act upon the question, it may be emphatically asked, whether the courts of Ohio should not conform to this change? It would be not a little inconvenient, as well as odd, if our citizens should receive one interpretation of the universal law merchant in our courts, while the stranger receives one different, by appealing to a different tribunal, which holds its seat by our side.

If the proposed change were wrong in itself, it ought not to be adopted; but it seems to commend itself to our acceptance, by its intrinsic propriety. The assured is bound to provide competent capacity and skill; it is a part of his implied warranty, and a duty which caution will enable him to perform; but the risks which arise from the carelessnesss of his servants, which are among the prominent perils he encounters, are those from which no prudence will defend him,-and from which he may well ask protection from the insurer. If, too, *the inquiry be extended beyond the proximate cause of loss, it will assume a latitude inconsistent with the distinct and intelligible rule, by which the rights of the parties should be defined. Wore the point now first offered to our courts, after these late discussions, it is hardly to be doubted that their modification would be received. And, since it has been accepted in this form in these courts, to whose decisions we look for evidence of commercial law, and since we believe it has, in fact, become a well-settled doctrino of the law merchant, we feel it a duty to recede from the position heretofore taken in these adjudged cases. The adoption of such a principle renders the inquiry sought by defendants irrelevant, and leads us to overrule the motion.

Motion overruled. Judgment for plaintiff on the verdict.  