CHICAGO & S. H. S. S. CO. v. LYNCH, 201 F. 70

SANBORN, District Judge (after stating the facts as above). The main question is whether plaintiff was injured by the rolling of the steamer and her own seasickness, over which defendant had no control, or by the negligence of the cabin watchman in moving her from a place of'safety into an unsafe position.

Counsel for defendant urges that one place was as safe as the other, that no other person fell, that no reasonable person would anticipate an injury from the placing of plaintiff in a comfortable and proper chair near the center of the stateroom, even in her condition of sickness, and that the highest degree of care consistent with the practical operation of the vessel was exercised.

On the other hand, plaintiff’s position is that it was a question of fact, properly submitted to the jury, whether it was not negligence for the watchman to take her, for the convenience of another passenger, from a position where her chair was against the cabin wall, flanked on both sides by other occupied chairs, and protected in front by her mother’s chair, and place her in a comparatively unprotected place upon a slippery floor, especially in view of her extreme helplessness; that if she had not been moved at all no liability could have resulted, but if defendant assumed to change her position it was its duty to put her in a place equally safe.

Upon this point the court charged as follows: “If the plaintiff became sick on defendant's boat, and the defendant’s employes knew of her sickness, it was their duty to treat her with such care and consideration as were reasonably necessary to protect her from injury.

And if the plaintiff, by reason of such sickness, was weak and helpless, and was seated in a chair in a position wherein she was safe and was protected from injury, and if one of defendant’s employes, knowing her condition, moved her from such safe position by pulling or moving the.chair in which she was sitting, in such manner and in such different position that the plaintiff was unsafe and unprotected, while sick and helpless and unable to care for herself, and was so left by the defendant’s employe, and if, by reason thereof, no negligence of the plaintiff contributing, the plaintiff fell and was injured, the defendant is liable to the plaintiff for damages for the injuries thus sustained, provided you further believe from the evidence that in so doing the act of defendant’s employe-was not the exercise of the highest degree of care by the defendant for the plaintiff’s safety, consistent with the practical operation of defendant’s boat.” 1.

The jury were justified in finding, under this instruction, that, defendant voluntarily assumed the responsibility of taking some degree of care of plaintiff whem she was moved from the wall. In this way defendant’s attention was specially called to her, her condition of helplessness, and all the surrounding circumstances, and it thus became its duty, as "she was unable to care for herself, to take reasonable means to insure her safety.

Whether leaving her in the. changed position would be likely to cause injury, or the watchman could reasonably have foreseen the probability of injury, were questions for the jury, depending on the extent to which the boat was lurching or rolling, plaintiff’s degree of helplessness, the condition of the floor, and other attending circumstances. All these conditions, not capable of being fully reproduced from the printed record, made the case peculiarly one for the jury.

In this case we need go no further than to hold that if a sick or helpless passenger is, for the convenience of another passenger, taken from a place of comparative safety without his consent or volition, and put in another place found as a matter of fact to be less safe, liability for a resulting injury is a question for a jury. The degree of responsibility of carriers for sick passengers is discussed in Croom v. Chicago, etc., Co., 52 Minn. 296, 53 N. W. 1128, 18 L. R. A. 602, 38 Am. St. Rep. 557, A., T. & S. F. R. Co. v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543, Mathew v. Wabash R. Co., 115 Mo.

App. 468, 78 S. W. 272, 81 S. W. 646, Haug v. Great N. R. Co., 8 N. D. 23, 77 N. W. 97, 42 L. R. A. 664, 73 Am. St. Rep. 727, Conolly v. Crescent City R. Co., 41 La. Ann. 57, 5 South. 259, 6 South. 526, 3 L. R. A. 133, 17 Am. St. Rep. 389, and L. S. & M. S. R. Co. v. Salzman, 52 Ohio St. 558, 40 N. E. 891, 31 L. R. A. 261. 2. Error is assigned for not excluding evidence of the slippery condition of the cabin floor. As we have seen, this was one of the attending circumstances to be considered by the jury in determining whether there was any negligence.

It was as pertinent, though perhaps not as influential, as the lurching of the vessel or the physical condition of the plaintiff. 3. It is urged that the court erred in not charging the jury that plaintiff took the risk of the rolling and pitching of the boat and of her own seasickness and that of other passengers. The court did so charge.

The jury were repeatedly told that the plaintiff could not recover unless defendant was negligent, that the burden of proof was on the plaintiff, that the mere happening of the accident did not make defendant liable, and expressly that the carrier was not liable for injuries from seasickness or rolling of the boat, apart from negligence. 4. It is claimed that the damages, found by the jury to be $11,-000, are excessive. This is a permanent injury to a previously healthy woman, 35 years old..

She is practically crippled for life, suffering from a deformity which will be a constant grave annoyance and interfere with her happiness and means of livelihood as long as she would be able to earn her way. She will always suffer some pain, likely to affect her health, and she will probably gradually get worse. Under these circumstances we cannot say that the damages were excessive. It is proper to say that the evidence as to the extent of the injury was in sharp conflict.

Physicians called by defendant testified that the fractures shown by plaintiff’s evidence did not exist, and that she will ultimately recover. We have stated the case as the jury found it to be, assuming that the facts found by them implied by a general verdict are the facts established by the record. The judgment is affirmed.