Ebert and others v. Smythe and others.
This important case was tried at Sandwich assizes, on Thursday, the 7th instant. The plaintiffs were the proprietors of the steamboat Kent, which was sunk by the steamer London, in August last, of which latter boat the defendants were owners. The action was for recovery of damages in consequence.
The plaintiffs' case was conducted by Colonel Prince, Q.C., and the Hon. S.B. Harrison, Q.C., and A.D. McLean, Esquire, of Chatham; and the defendants', by the Hon. H.J. Boulton, Q.C., and John Wilson, Esquire, of London.
The case for the plaintiffs was opened in a very able and luminous speech from Mr. Harrison; and a great many witnesses having been examined, Mr. Boulton raised several legal objections, and called upon his lordship, Mr. Justice Macaulay, to nonsuit the plaintiffs. He contended that the form of action ought to have been trespass, and not case; that there was evidence of wilful and malicious conduct on the part of those who had charge of the London when the accident occurred, and that therefore the defendants were not liable for conduct of that sort, on the part of those whom they employed; and that the Kent being on the starboard side of the London, instead of the larboard, in going down Lake Erie, was on the wrong side, and therefore could not render the London liable. To these arguments Mr. Prince and Mr. Harrison replied, and his lordship overruled them, after much discussion.
Mr. Boulton then addressed the jury in a very able speech, and called a great number of witnesses, whose evidence went mainly to show that the Kent had taken the wrong course and that she had run athwart the bows of the London, and was thus run down.
At 9 p.m. Mr. Prince rose to reply upon the whole case. He contended that the statute of Upper Canada which regulated the side for vessels to take of each other in sailing and steaming, did not apply on large and open expanses of water, where there was abundance of sea room (except in peculiar cases, of which that was not one), but in rivers and channels only; and he compared the evidence of both sides, and rested his case chiefly on the absurdity of supposing that so small a vessel as the Kent should wantonly run across the bows of the London, which was more than three times her size, and thus subject herself to certain destruction. The learned gentleman compared it to a dwarf attacking a giant; and concluded his address by calling on the jury to give a verdict for his clients, and thereby teach those who had charge of steamers, that the lives and properties of mankind were not to be trifled with or endangered by their carelessness or want of skill.
His lordship then charged the jury (which was a special one) in his usually clear and impartial manner; first explaining to them the law of the case, and then going through all the evidence, and commenting upon it as he went along, leaving it to the jury to say whether the London was wholly in the wrong. If so, the plaintiffs ought to recover such reasonable damages as they thought them entitled to; but if both vessels were in the wrong, the defendants ought not be held liable.
The jury retired at half-past 11, and at 1 o'clock a.m. brought in a verdict for the plaintiffs, damages 2500 Pds.
The cause excited great interest, and the court house was crowded throughout the whole trial, which lasted thirteen hours.