
    138 F. 383
    NORTHERN COMMERCIAL CO. v. NESTOR.
    No. 1,071.
    Circuit Court of Appeals, Ninth Circuit.
    May 22, 1905.
    
      Thomas, Gerstle & Frick, Charles S. Johnson, and A. J. Daly, for plaintiff in error.
    William A. Gilmore, James E. Fenton, and T. M. Reed, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   ROSS, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

It is contended on the part of the plaintiff in error that the court below should have instructed the jury to return a verdict in its favor. The refusal of the court to do so was, in our opinion, clearly right. The evidence showed without conflict that the defendant in error was at the time that he was shot sitting on the upper deck of the steamer, near the captain’s cabin, reading. There was testimony going to show that on the day of the accident— which was July 1, 1902 — as well as the day before there had been much shooting by the passengers and others on board, with pistols, guns, and rifles, some of them running from one side of the boat to the other with their weapons, and there was testimony tending to show that during the time such shooting was going on the rifle with which the defendant in error was shot had been carelessly left loaded on some grating on the deck of the steamer by a passenger called “The Lucky Swede,” after which it was picked up by a man named Quinn, who handled it so recklessly as to shoot the defendant in error, inflicting upon him a painful and serious injury. The case further shows that several of the passengers — the defendant in error among them — had complained to the master of the vessel of the danger of such use and handling of the firearms on board, the defendant in error testifying, among other things, as follows: “The shooting began in the morning, and continued off and on through the day, away along until midnight of June 30th, after midnight. I saw the ‘Lucky Swede’ and saw Mr. Donahue and Frank Harker shooting. There were several others. A rifle, double-barrel hammer-less shotgun, and several revolvers were used that day. A passenger on board by the name of Frank Harker was using the double-barrel shotgun. On June 30th, a great number of shots were fired. I had a conversation with the captain on June 30th. The captain was on the pilot house, walking back and forth. It was in the morning some time. There had been shooting. I asked the captain to not allow that reckless shooting, and people running across the boat with his gun; that somebody was liable to be hurt. I do not recollect what the captain said, but it was to the effect that guns were allowed on the boat. There was shooting prior to my conversation.”

In the testimony of the witness Riese that witness said, among other things: “I saw Mr. Quinn handling that gun on the morning of June 30th. I don’t know whether he was shooting it or not. I mean the twenty-two rifle. He was handling it just a little aft of the paddle wheels — between there and the stern of the boat. I could not be positive whether he handled the gun on the first day or not. I know he did on the second. That was the next day after we left Nome, the 30th of June. On the morning of the 1st day of July he was on the aft part of the boat, and he wanted this little -rifle. He was handling this rifle, but he was too reckless with it, that I took it away from him, and gave it to some one else. I forget now who it was. I had a conversation with the captain of the Sadie prior to the time Mr. Nestor was shot. He was standing at the corner of the pilot house, on the left-hand side, and looking towards the forward end of the boat. I had this conversation on the 1st day of July, a little while before lunch, about eleven o’clock a. m.”

The witness being asked to state that conversation, the question was objected to, and, the objection being overruled, he answered: “I went to the captain, and told him that I did not think it right to allow people to handle guns on board the steamer in such a careless manner; that it endangers the lives of our fellow passengers. I don’t just exactly remember now what the captain did say. He made some kind of a sharp remark to me, as much as to say that he was running the ship, or something to that effect. I didn’t get any satisfaction from him. After I conversed with the captain, he did not take any steps to stop the shooting. There was shooting after that.”

On cross-examination this witness testified: “I went once to the captain. I am positive that was on July 1st, and not on June 30th. I remember the incident that occurred at that time because it was the day that this man Quinn handled the gun in such a reckless manner, and this incident occurred shortly afterward. I guess I did make the answer to the question in the taking of my deposition, ‘When was it you spoke to the captain?’ the answer, ‘It was the first morning out after we left here;’ and in answer to the question, ‘About what time; do you remember?’ I guess I did make the answer, ‘It was about nine or ten o’clock in the morning.’ ”

It is surprising, in view of such testimony, to find it seriously contended that the court should have taken the case from the jury by directing a verdict for the defendant. The defendant was bound to exercise the utmost vigilance and care in maintaining order and guarding its passengers against the negligent and careless use of firearms and other violence, from whatever source arising, which might reasonably have been anticipated, or naturally expected to occur, in view of all the existing circumstances, and of the number and character of the persons on board. Flint v. Norwich, etc., Trans. Co., 34 Conn. 554, Fed.Cas.No.4,873; Norwich & N. Y. Transp. Co. v. Flint, 13 Wall. 3, 20 L.Ed. 556; West Memphis Packet Co. v. White, 99 Tenn. 256, 41 S.W. 583, 38 L.R.A. 427. The charge of the court below, taken as a whole, was in substantial accord with this rule. It is not, as has been often decided, permissible to take and consider isolated sentences of a charge, regardless of their context. We are of opinion that the charge of the court below covered the law applicable to the case (except in respect to an omission, favorable to the plaintiff in error, hereinafter noticed), and that there was therefore no prejudicial error, in refusing such of the plaintiff in error’s instructions as stated the law correctly.

It is urged on behalf of the plaintiff in error that the jury was not properly instructed in regard to the assessment of damages. This is the instruction given by the court on that subject: “I further instruct you that if you find from a preponderance of the evidence all of the issues in this case in favor of the plaintiff, and that he is entitled to recover, the measure of his recovery should be limited strictly to what is termed ‘compensatory damages,’ not exceeding the sum of fifty thousand six hundred dollars. In assessing such damages the jury may consider the award: (1) Such sum as will compensate him for the reasonable value of the services for medical attendance, for medicines, nursing and hospital fees paid or incurred, if any such expenses have been proven, in attempting to effect a cure, and for nursing him during the period that he was disabled by his injury. (2) The value of his time during the period that he was disabled by such injury, if it has been shown by the evidence. (3) If the injury is of a permanent nature, and has impaired the plaintiff’s power to earn money in the future, such sum as will compensate him for such loss of power. And, finally, the jury may consider the pain and suffering, both mental and physical, to which plaintiff has been subjected, if any; the loss of time and loss of wages which has resulted from his injury, if any; the nature and extent of his physical injuries; the effect upon his ability to earn his living since the injury occurred, as compared with his ability to do so before; and the probable effect of those injuries upon his future health and strength. Under all these circumstances, and in view of all these facts, if you find plaintiff is entitled to recover, you should award him such damages as you, in your .dispassionate judgment, believe will be a reasonable and just compensation for the injuries, if any, he has sustained, not exceeding the sum of fifty thousand six hundred dollars.”

The first objection made to these instructions is that the jury was first directed to take into account the value of the plaintiff’s time during the period he was disabled by the injury, and was again told to consider the loss of wages sustained by the injury; that this was authorizing a double recovery for the same thing. We do not think the jury could have been misled in the particular indicated by the instructions given. The plaintiff in error had testified to the amount of wages he was accusto'med to receive, and the value of his time was therefore the amount of the wages, which was evidently what the court meant, and what the jury must have understood by the instructions in question.

It is also contended on the part of the plaintiff in error that there was no testimony tending to show that the plaintiff’s power to earn money was lessened by the accident, and therefore that the instructions in respect to damages were erroneous. But we think the testimony of the plaintiff himself and of the witness Dr. Rininger constituted a sufficient basis for the giving of the instruction complained of.

Another objection, contained in the ninety-second and ninety-third assignments of error, is that the court erred in refusing to charge the jury that, if it should be found that the defendant attended the plaintiff after he was shot - with the reasonable care that an ordinary person would have bestowed upon him under the circumstances, they should return a verdict for the defendant. Such would not have been the degree of care required of the defendant towards one of the members of its crew. The Iroquois, 194 U.S. 240, 24 S.Ct. 640, 48 L.Ed. 955; Id., 118 F. 1003, 55 C.C.A. 497; The Troop, 128 F. 856, 63 C.C.A. 584; Whitney v. Olsen, 108 F. 292, 47 C.C.A. 331. Certainly a passenger is entitled to none the less care. Although one of the alleged grounds of the plaintiff’s action was the defendant’s neglect of him after he was wounded, and although the plaintiff’s testimony tended to- show such neglect, yet-the attention of the jury was not called to that phase of the case in the instructions that were given. This, manifestly, was in favor of the defendant to the action, and not to its prejudice.

The judgment is affirmed, subject to the stipulation of the respective parties to the suit filed in this court, agreeing that the judgment shall not bear interest after April 1, 1905.  