[*220]

*So, if a man take upon himself an office or duty, requiring skill or care,—if by his ignorance, carelessness or negligence

from having unfortunately occasioned, by any act of his own, the death of another, ought at least to show that he took that care to avoid it, which persons in similar situations are accustomed to do. 1 East, P. C. 263. The deceased was walking along the road in a state of intoxication. The prisoner was driving a cart drawn by two horses, without reins. The horses were cantering, and the prisoner was sitting in front of the cart. On seeing the deccased, he called to him twice to get out of the way, but from the state he was in and the rapid pace of the horses, he could not do so, and was killed. Garrow, B., said, that if a man drive a cart at an unusual rapid pace, whereby a person is killed, though he calls repeatedly to such person to get out of the way, if from the rapidity of the driving or any other cause, the person cannot get out of the way time enough, but is killed, the driver is guilty of manslaughter. He added, that it is the duty of every man who drives any carriage, to drive it with such care and caution as to prevent, as far as in his own power, any accident or injury that may occur. Walker's case, 1 C. & P. 320. What will constitute negligence in the case of driving carriages, must depend greatly upon the circumstances of each particular case.

A foot passenger, though he may be infirm from disease, has a right to walk on the carriageway, although there be a foot-path, and he is entitled to the exercise of reasonable care on the part of persons driving carriages along the carriage-way. Boss v. Litton, 5 C. & P. 407, Lord Denman, C. J. A tradesman was walking out on a road, about two feet from the footpath, after dark, but there were lamps at certain distances along the line of road, when the prisoner drove along in a cart drawn by one horse, at the rate of from eight to ten miles an hour, according to some witnesses, and from six to seven miles an hour according to other witnesses; the prisoner sat on some sacks, laid on the bottom of the cart, and he was nearsighted. Other persons who were walking along the same road, had with considerable difficulty got out of the way of the prisoner's cart. Bolland, B., told the jury, that the question was, whether the prisoner, having the care of the cart, and being a near-sighted man, conducted himself in such a way as not to put in jeopardy the limbs and lives of his majesty's subjects. If they thought he had conducted himself properly, they would say he was not guilty; but if they thought that he acted carelessly and negligently, they would pronounce him guilty of manslaughter. Rex v. Grout, 6 C. & P. 629, Bolland, B., and Park, J. A. J.

If, in consequence of a person sitting in a cart, instead of being at the horse's head, or by its side, death is occasioned, such person is guilty of manslaughter. Upon an indictment for manslaughter, the evidence was, that the prisoner, being employed to drive a cart, sat in the inside instead of attending at the horse's head, and while he was sitting there, the cart went over a child, who was gathering up flowers on the road. Bayley, B., held, that the prisoner, by being in the cart, instead of at the horse's head, or by its side, was guilty of negligence; and death having been caused by such negligence, he was guilty of manslaughter. Knight's case, 1 Lew. 168.

If the driver of a carriage urges his horses to such a pace, that he loses the command over them, and thereby death is occasioned, ho is guilty of manslaughter. So, if the driver be racing with another carriage, and, from being unable to pull up his horses in time, his carriage is upset, and a person killed, the driver is guilty of manslaughter. Upon an indictment for manslaughter, it appeared that there were two omnibuses, which were running in opposition to each other, galloping along a road, and that the prisoner was driving that on which the deceased sat, and the witnesses for the prosecution stated that the prisoner was whipping his horses just before his omnibus upset. The defence was, that the horses in the omnibus driven by the prisoner took fright and ran away. Patteson, J., "The question is, whether you are satisfied that the prisoner was driving in such a negligent manner that, by reason of his gross negligence, he had lost the command of his horses; and that depends on whether the horses were unruly, or whether you believe that he had been racing with the

he cause the death of another, he will be guilty of manslaughter. Where it was the duty of the ground bailiff of a mine, to regulate the ventil

other omnibus, and had so urged his horses that he could not stop them; because, however he might be endeavoring to stop them afterwards, if he had lost the command of them by his own act, he would be answerable: for a man is not to say, I will race along a road, and when I am got beyond another carriage I will pull up. If the prisoner did really race, and only when he had got past the other omnibus endeavored to pull up, he must be found guilty; but if you believe that he was run away with, without any act of his own, then he is not guilty. The main questions are, were the two omnibuses racing? and was the prisoner driving as fast as he could, in order to get past the other omnibus? and had he urged his horses to so rapid a pace, that he could not control them? If you are of that opinion you ought to convict him." Rex v. Timmins, 7 C. & P. 499, Patteson, J.

A person driving a carriage is not bound to keep on the ordinary side of the road; but if he do not do so, he is bound to use more care and diligence, and keep a better look out, that he may avoid any concussion, than would be requisite if he were to confine himself to his proper side of the road. Pluckwell v. Wilson, 5 C. & P. 375, Alderson, B.

Those who navigate a river improperly, either by too much speed, or by negligent conduct are as much liable, if death ensues, as those who cause it on a public highway, either by furious driving, or by negligent conduct. An inquisition charged that the prisonor did "propel and force" a vessel against a skiff, whereby the deceased was drowned. The counsel for the prosecution, in opening the case, said, that he apprehended the rule as to traversing the river Thames was the same as that applicable to the mode of passing along any of the queen's common highways: therefore, if the speed at which, or the manner in which the prisoners were navigating the vessel, and were proceeding before they saw the skiff, was such as to prevent them, after they did see it, from stopping in time to prevent mischief to the person in it, they would be responsible for the offence of manslaughter, if his death happened in consequence; if, on a misty night, the prisoners were proceeding at such a rate, that they could not stop in time, their so proceeding was illegal, and, as death ensued, they were responsible. Parke, B., "You have stated the law most correctly. There is no doubt that those who navigate the Thames improperly, either by too much speed, or by negligent conduct, are as much liable, if death ensue, as those who cause it on a public highway, either by furious driving, or negligent conduct. Reg. v. Taylor, 9 C. & P. 672.

In order to convict the captain of a steamer of manslaughter in causing a death by running down another vessel, there must be some act of personal misconduct or personal negligence shown on his part. The captain and pilot of a steamer were indicted for manslaughter in causing a death by running down a smack, and it appeared that at the time the steamer started there was a man forward in the forecastle to keep a look-out, but at the time when the accident happened, which was about an hour afterwards, the captain and pilot were both on the bridge which communicates between the paddle-boxes; the night was dark, and it was raining hard; the steamer had a light at each end of the topsail yard; an oyster smack on board which the deceased was, was coming up the Thames without any light on board; the deceased was below: a boy who was on board the smack stated that when the steamer struck the smack he got on board the steamer, and found nobody forward: other witnesses were present to show that no person was forward on the look-out at the time. Park, J. A. J., "Then the captain is not responsible in felony; it is the fault of the person who ought to be there, and who may have disobeyed orders; if the captain leaves the pilot on the paddlebox, as he did here, he is not criminally responsible. In a criminal case every man is answerable for his own acts; there must be some personal act; these persons may be civilly responsible." Alderson, B., "If you could show that there was a man at the bow, and that the captain had said, 'Come away, it's no matter about looking out,' that would be an act of misconduct on his part. If you can show that the death of the deceased was the result of any act of personal misconduct on the part of the captain, you may convict him." Park, J. A. J., "Supposing he had put a man there, and had gone to lie down, and the man had walked

ation, and to direct where air headings should be placed, and in conse

away, do you mean to say he would be criminally responsible? And you must carry it to that length if you mean to make anything of it." Alderson, B., "I think this case has arrived at its termination; there is no act of personal misconduct or personal negligence on the part of these persons at the bar." Rex v. Allen, 7 C. & P. 153.

To make the captain of a vessel guilty of manslaughter in causing a person to be drowned, by running down a boat, the prosecutor must show some act done by the captain; and a mere omission on his part in not doing the whole of his duty, is not sufficient: but if there be sufficient light, and the captain of a steamer is either at the helm, or in a situation to be giving the command, and does that which causes the injury, he is guilty of manslaughter. Upon an indictment against the captain of a steamer for manslaughter in causing a death by running down a boat, the counsel for the prosecution, in opening the case, said, if a party engaged in a lawful occupation is guilty of wilful misconduct, or of gross negligence, it is manslaughter. Park, J. A. J., "You must show some act done; you rather state it as if a mere omission on the part of the prisoner in not doing the whole of his duty would be enough; and we are of opinion that is not sufficient. I have no hesitation in saying, that if there was sufficient light, and the captain himself was at the helm, or in a situation to be giving the command, and did that which caused the accident, he would be guilty of manslaughter." Alderson, B., "There must be some personal act. In the case of a coach, the coachman is driving animals, and in the case of the captain, he is governing reasonable beings." It appeared in evidence that the deceased and two other persons were in a small boat going down the river, when a small steamer used for towing, of which the prisoner was master, met them, and, notwithstanding their shouting, struck the boat, and nearly cut it in two, in consequence of which the deceased was drowned; the waterman proved that he and the captain were on the starboard side of the windlass, and two other men were on the larboard side; that the captain did not leave his place once, and the mate was at the helm, and remained there till after the accident; that the engine was all open, and worked on deck, and made a great noise; that he did not hear the shouting in time to do anything to avert the accident. Park, J. A. J., "This case has come to its end; at the outside it can only be considered as one of those accidents which will happen in a river navigation; it appears that they kept a proper look out; and there were several persons on the dock at the time. Rex v. Green, 7 C. & P. 156.

The New-York Revised Statutes (vol. 2, p. 843, § 5, 4th ed., Banks, Gould & Co., 1852,) declare that the killing when perpetrated by any act imminently dangerous to others, and evincing a deprived mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder.

By act of congress of July 7th, 1838, sec. 12, (5 St. at Large, 306,) every captain, engi neer, pilot, or other person employed on board of any steamboat, or vessel propelled in whole or in part by steam, by whose misconduct, negligence, or inattention to his or her re-. spective duties, the life or lives of any person on board said vessel may be destroyed, shall be deemed guilty of manslaughter, and shall, upon conviction thereof before any circuit court of the United States, be sentenced to confinement at hard labor for not more than ten years."

In U. S. v. Taylor, (3 West. L. Jour. N. S. 481,) on a trial under the foregoing act of con gress, the court charged the jury: "Under this statute the defendant has been indicted, as engineer on board of the steamboat Virginia, and that by his misconduct, negligence, and inattention to his duties, on a trip from Wheeling, in Virginia, to Steubenville, in Ohio, the boilers of said boat exploded, which caused the death of several passengers on board of said boat, named, and of others not named. The word engineer, is used in the statute to desig nate the individual who acts in that capacity, and the law hold him responsible as such. If he assumes to perform the important duties of an engineer, without the proper qualifications, his ignorance is no excuse, but rather an aggravation of his offence. Congress could not have supposed that any one would be employed in so important a trust who did not possess the requisite qualifications. There is no situation which requires a more accurate knowl

quence of his neglecting to do so, there was an explosion of fire damp edge of the power of steam, or a more matured experience, that that of engineer on board of a steamboat. I regard every steamboat as a floating volcano, freighted with human beings, which, from any want of attention by the engineer, is liable to explode, and to hurl them into eternity without a moment's warning. There are no elements in nature more destructive of life, than those which are carried in the bosom of a steamboat. It overcomes the force of currents, the winds and the waves, impelled fiery agency, which, unless kept in subjection, destroys every thing within its reach.

"How fearful is the responsibility of every one, who undertakes to govern a vessel thus propelled! His skill should be undoubted, his attention and vigilance unceasing. In case of an explosion, he can only be held guiltless by having done every thing to avoid it, which a skillful engineer could have done, under the same circumstances. If he be guilty of misconduct, of negligence, or inattention, by which means life has been sacrificed, he is punishable under the law. The law deals with him, as one competent to perform the duties he has assumed, and he is required to exercise the skill of an instructed and vigilant engineer. But we do not understand that want of skill is relied on as a defence in this case.

"I shall not refer to the facts in detail as stated by the witnesses, but the principal facts are admitted by the parties, or stand uncontradicted. The explosion was more destructive of human life, in proportion to the size of the boat and the number of passengers on board, than any other, I believe, upon our western waters. But few escaped unharmed. Many were killed, their mangled bodies and separated limbs being thrown upon the land and upon the water, and others were seriously injured. Some of the survivors were thrown into the air and were found in and rescued from the water; others were found on shore. The boat was made a perfect wreck; its boilers were broken into fragments, some of which were found a great distance from the boat, on land, others fell in the water. The hull of the boat immediately sunk To produce such comsequences, the steam must have been generated to its utmost height. It is for you, gentlemen of the jury, to inquire whether this explosion resulted from the misconduct, negligence, or inattention of the engineer. The proper determination of this question is of the utmost importance to the public, as well as to the prisoner. The safety of the traveling public, on our western waters, demands that the evidence and the circumstances in all cases of this sort, should be most carefully investigated. While the innocent should be protected, the culpable instruments of such immeasurable calamity should not go unpunished.

"The fact of explosion is not prima facie evidence against the defendant, but it is part of the res gesta essential to the prosecution, and without which it cannot be maintained. But in addition to this, some inattention. negligence, or misconduct by the defendant must be proved to authorize his conviction. On the part of the prosecution, it is contended that the boat stopped several times in eleven and a half miles from Wheeling, the point of departure, to the landing, where the explosion occurred, that greater care was necessary in letting off the steam than where the stoppages are less frequent. The force of this argument is sustained by experience. Rarely, if ever, do boilers explode when a boat is under way, unless the force of the steam be increased by extraordinary means.

"One of the witnesses, Boals, stated, that having occasion to go below, he found the defendant sitting between the boilers engaged in reading. This was near an hour before the explosion took place. He was, however, in full view of the machinery. The witness observed to him the boat was making greater speed than usual. The boat lauded about one hundred and fifty yards below the place where the boilers exploded, and remained there five minutes. At that place no steam was let off. The fires were kept up. The boat then proceeded to the fatal landing, where it remained five minutes before the engine was put in motion, when the explosion occurred. There is no evidence that the steam was permitted to escape on the first or the last landing, or at the landing where the explosion took place.

"An attempt has been made to show that the boilers of the Virginia were defective, and that its structure, it being top heavy, rendered it unsteady and liable to careen. And that

in the mine, and nineteen of the workmen were killed: Maule, J., held

in landing the bow of the boat may have been run on the shore, which would naturally incline the vessel to the side opposite the shore, and that on making back water to force the vessel from the shore, she would resume her erect position, which would throw the water into the heated and measurably exhausted boilers on the other side, which probably produced the explosion. There is no evidence on which this conjecture is founded. If the bow of the boat at the landing was run upon shore, there is no proof the fact.

"It is also insisted that the boilers of the boat were defective. There is no competent evidence offered to prove this fact. Fragments, alleged to be of the boilers, were offered, and the statements of persons who had examined them; but they were not identified to be parts of the boilers of the Virginia. Some evidence has been given which you will duly consider, tending to show the good conduct of the defendant on former occasions while acting as engineer on a steamboat.

'Congress by legislation on this subject, have endeavored to add somewhat to the security of passengers in traveling upon steamboats. They may not have done all that could be done by legislation. Under the commercial power they possess the exclusive authority to regulate steamboats and other vessels which are used in carrying on a commerce between two or more states. And if they shall fail to do what may be done by the exercise of legislative power, to advance the commerce and give safety to the traveling public, they are justly amenable to public opinion. Whatever may be thought of other subjects which more immediately address themselves to the feelings and interests of congress, there is no subject connected with our western commerce more vitally interesting to the country. "The defence in this case may be ingeniously made.

"If the danger of steamboat traveling were more generally known and appreciated, less safety would be felt in that mode of travelling. But, gentlemen, we are not responsible for any defect of legislation on this subject. Our functions are exercised in giving effect to the law. And in the present case, if on a full and deliberate consideration of the facts and circumstances of this case, you are led to the conclusion that the calamity so much to be deplored, was occasioned by any misconduct of the defendant, by want of skill, negligence, or inattention on his part, you will render a verdict of guilty. And particularly if you shall believe that it was his duty as a careful and skillful engineer to let off the steam, at either or both of the last two landings, and that such a failure caused the explosion, he is guilty under the statute. On the contrary, if you shall think, on weighing the evidence, that his duty was faithfully discharged, you will find him not guilty."

In New York, in The People v. John F. Tallman, (MSS. September, 1852,) the prisoners presented a petition to Mr. Justice Edmonds, setting forth that they had been arrested by the sheriff of Westchester county, and were in his custody on a warrant issued by the county judge of that county, charging them with the crime of murder in this: That they were the officers in charge of the steamboat Henry Clay, which was engaged in the transportation of passengers between Albany and New York, on the Hudson River; that in their trip down the river on the 28th July, 1852, they engaged in a race with another boat, and for the purpose of excelling that boat or increasing the speed of their own boat, they created an undue and unsafe quantity of steam, and made excessive fires on board, and so continued them until the boat caught fire, when it was run ashore in the town of Yonkers, in that county; that one of the passengers was burned to death and fifty-seven of them drowned, and that thereby the defendants had been guilty of murder in having killed those persons without authority of law, by an act imminently dangerous to others, evincing a depraved mind, regardless of human life, though without a premeditated design to effect the death of any particular individual.

The petition also stated that the petitioners had been arrested on process issued out of the District Court of the United States, and been held to bail on a charge of manslaughter for the same act, in having, by their misconduct, negligence, or inattention to duty on board that boat, caused the death of the same persons while passengers on board.

From the return to the habeas corpus, the additional fact appeared that inquests had been