COOK & SCOTT vs. PARHAM, 24 Ala. 21

GOLDTHWAITE, J. It appears from the record, that, in order to show the want of skill on the part of Cook as a steamboat captain, the deposition of a witness who had acted as such for many years, and was acquainted with Cook, was offered by the plaintiff below. In taking such deposition on interrogatories, the plaintiff had asked this question : ££ What is the general reputation of said Cook as a steamboat captain 1” To this interrogatory the defendants objected, before the taking of the deposition, and at the trial also.

The court decided, that evidence of such general reputation could not be given ; but the witness, in answering such interrogatory, having stated that “ Cook had no reputation, for the reason that he had no experience, and he regarded him as wholly incompetent for such a duty,” the court overruled the objection, and allowed the answer to be read as evidence to the jury.

Our first impression, on the examination of this case, was, that the question was illegal, and that the answer, although it may have contained some evidence applicable to the issue, should have fallen with the question, for the reason that such portion, not being responsive to any interrogatory, was but the statement of the witness on oath. A more careful investigation has, however, satisfied us that the question itself was legal under the circumstances disclosed by the record.

The action was against two parties, one of whom was sought to be charged as the actual wrong-doer, as well as part owner, and the other (Scott) simply as his co-owner. The principle established in the case of Walker v. Bolling, 22 Ala. 294, is, that the owner of a steamboat was bound to the exercise of ordinary care in providing competent officers; and unquestionably, under this decision, in an action to charge the owner, evidence showing that he had notice "of the incompeteney of a particular officer, by whose neglect the injury was occasioned, would be legal testimony.

The general reputation of Cook for want of skill as a steamboat captain, if not evidence of the fact itself, at least tended to prove notice to the owner, if the fact was otherwise established, (Branch Bank v. Parker, 5 Ala. 731;) and as such was admissible evidence.

So also the answer, or at least that portion of it which said that Cook had no reputation for the reason that he had no experience.” The statement of an additional fact as the basis of the general character, is not, in our opinion, objectionable ; and if it were so, a specific objection should have been made to that portion of the answer, as the court was not bound to separate the legal from the illegal. That this evidence was offered for the purpose of proving the unskillfulness of Cook, does not affect its competency, if the record shows that it was admissible for any other purpose, (Lawson & Swinney v.

The State, 20 Ala. 55;) and in such case, if the party wishes to restrain or limit its effect, it must be done by requesting instructions to the jury with a view to that result.—Greene v. Tims, 16 Ala. 541. Neither can the objection raised to the evidence of the wPness Charles be sustained.

He was the clerk of the Winona, had been in the business for many years, and, as we understand his testimony, was possessed of that degree of information as to the navigation of the river which would entitle him to speak as an expert, and as such to give his opinion as to the skill or want of skill manifested by a particular act on the part of the officers of the boat. A nautical person may give his opinion as to whether, upon the facts proved by the plaintiff, the collision- of two ships could have been avoided by proper care on the part of the officers of one of them.—Fenwick v.

Bell, 1 Car. & Kin. 312; Malton v. Nesbit, 1 Car. & Payne 70. It appears from the record, that there was evidence conducing to show that the slave June leaped from the boat, into the river, when there was no necessity for him to have done so ; and upon the trial it was insisted, that if his death was caused by his own rashness, and not by the act of the plaintiffs in error, they could not be held responsible.

The chargo given upon this point was, “ that, if the death of the slave was the legitimate and natui al consequence of the collision, though not the inevitable consequence, the defendants "would be liable;” and the judge a'so added, “ that if a man of ordinary care and presence of mind could have saved himself, yet, if the slave was frightened out of his ordinary presence of mind, by the oonfusion and alarm occasioned by the collision of the boats, and that collision was the result of the negligent acts of the defendants, then they wouli be liable” ; or, in other words, that the death in such a case would be the legitimate consequence of such negligence.

In this charge there was no error. We concede that, where the party who is injured by the negligent acts of another, has contributed by his own misconduct to produce the injury, he will not be heard to complain, and cannot recover.—Jones v. Boyce, 1 Stark. R. 493. But this principle has no application to the present ease.

That the death of the slave may have been the result of fright, or the want of presence of mind, occasioned by circumstances of excitement, confusion and danger brought about by the negligent acts of the defendants, should not be imputed to him as a fault; nor could we regard it in any sense as misconduct, if, under like circumstances, one should mistake the best means of safety, and lose his life in the effort to preserve it. The principles involved in this branch of the case, w'ere fully and ably considered in Stokes v.

Saltonstall, 13 Pet. 181, and the opinion of the court in that case sustains that portion of the charge to which we have referred. Neither was there any error in the refusal of the court to instruct the jury “ that, if the plaintiff knew or had the means of knowing the captain and the pilot ot the boat, and their character for skill and care,” this would relieve the defendants from liability for their negligence.

One of the legal propositions asserted by the charge as requested, is, that it devolves upon the bailor to ascertain the competency of the officers of the boat if he can do so; and this proposition cannot bo sustained. We have decided, that it was the duty of the owners of the boat, to use due care in procuring competent servants or officers in the management of their business, and that the bailor has the right to hold them responsible for a failure to discharge that duty.—Walker v. Bolling, 22 Ala. 294.

The officers of a steamboat are removable at the pleasure of the owners ; and a just sense of what is due to the public demands their removal, whenever it is ascertained that, from want of skill or care, they are improper persons to discharge the responsible duties confided to them. The bailor can make no calculation upon the continuance of any particular captain or pilot, and ought not to bo held to any inquiry as to a duty which the law properly devolves upon the owners, and which the bailor has the right to believe they have discharged.—Hutchinson v. The York Railway Co., 5 W., H. & G. 341.

To the charge of the court, that tvhere two persons are employed by a common employer in the same general business, and one of them is injured by the negligence of the other, the employer is not responsible therefor, as a general proposition we all yield our assent to. It is too well established, both upon English and American authority, to be now controverted.—Priestly v. Fowler, 3 M. & W. 592; Hutchinson v. The Railway Co., 5 W., H. & G. 341; Wigmore v. Jay, ib. 354; Murray v. S. C. Railroad Co., 1 McMullan 385; Farewell v. The Boston & Worcester Railroad, 4 Met. 49; Strange v. McCormick, Penn. Rep.; Brown v.

Maxwell, 6 Hill 592; Coon v. The Utica Railroad, 6 Barb. 231; Hayes v. The Western Railroad, 3 Cush. 270. In relation to the charge that this rule did not apply in case the injury arose from the carelessness of Cook as captain, and that in such case both he and his co-owners would be responsible, the court is divided; the Chief Justice and Judge Ligón holding it to be free from error, while Judge Phelan and myself hold it to be erroneous.

As the expression of our individual views on the question upon which we differ can determine no principle, we decline submitting them until the same question is presented before a full court. The other portion of the charge, that if the collision occurred from the negligence or fault of the pilot, the owners were responsible, if they knew or had the means of knowing that he was careless and reckless, falls directly within the principle of Walker v. Bolling, supra, and in that there is no error.

It follows from what we have said, that there was no error in the refusal of the court to give the first charge requested, as, taken in connection with the evidence, it asserted the legal proposition, that although the pilot of the boat was reckless and careless, the owners were absolved from all responsibility, if the party injured and such pilot were servants in the common business. The last charge requested we have already considered. The consequence of our disagreement upon the point referred to, is the afiirmance of the judgment upon division. Gibbons, J., not sitting.