The Wheeling Register, March 6, 1884, p. 4
David E. Keller, the pilot of the steamer Scioto, on the night of that fatal Fourth of July, 1882, is still in the County Jail at Parkersburg. The jury found him guilty of manslaughter and he is now awaiting the sentence which was postponed at his own request. Judge Jackson is now in this city and it will probably be some days before he will again hold court in Parkersburg. This case is of such importance, in the bearing of its results, that the legal points affirmed will be treasured up by every riverman to whose knowledge the case has come. Therefore, the charge to the jury, delivered by Judge Jackson, is given in full and is well worth the space it occupies. The rules for the government of pilots are here given, upon which the opinion is based.
Rule 1. When steamers are approaching each other the signal for passing shall be one sound of the steam whistle to keep to the right, and two sounds of the steam whistle to keep to the left -- the signals to be made first by the descending steamer.
Rule 2. Should steamers be likely to pass near each other, and these signals should not be made and answered by the time such boats shall have arrived at the distance of eight hundred yards of each other the engines of both shall be stopped; or, should the signal be given and not properly understood from any cause whatever, both boats shall be backed until their headway shall be fully checked, and the engines shall not be again started until the proper signals are made, answered and understood. Doubts or fears of misunderstanding signals shall be expressed by several short sounds of the whistle in quick succession.
Rule 4. When a steamer is ascending and running close on a bar or shore the pilot shall in no case attempt to cross the river when a descending boat shall be so near that it would be possible for a collision to ensure therefore.
Gentlemen of the Jury:
It must be gratifying to you that we are at last approaching the conclusion of this protracted trial. Its great importance both to the country and the accused full justifies the time consumed in its investigation. The defendant is indicted under section 5344 of the Revised Statutes, which declares that "every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel, the life of any person was destroyed; and every owner, inspector or public officer, through whose fraud, connivance, misconduct or violation of law, the life of any person is destroyed, shall be deemed guilty of manslaughter." The indictment in this case contains four distinct counts, setting up and charging the offence in as many different ways. The difference in the counts consists in the manner the offence is stated and in describing different acts under the statute, charged as general misconduct, negligence and inattention to duty. Each count in the indictment consists a separate and distinct offence and if you find from the evidence that the allegations as laid in any one of the counts in the indictments are true, it will be your duty to return a verdict of guilty, although you may find against all of the remaining counts.
It is not the practice of this court to discuss the effect of evidence submitted to the jury; but to leave its consideration with the jury as being more properly within the provence of its duty. It is my duty to give you the law applicable to the issue as made up, which you are sworn to try and a true verdict to render under the law and the evidence.
The Court is asked to tell you that in the trial of criminal cases the jury is the judge of both the law and the fact. Such is not the case. The court explains the law and it is both your moral and legal duty to accept it as given you "unless you can say upon your oaths that you are better judges of the law than the court." Of course you can disregard the instructions of the court and refuse to accept the law as given to you by it; but if you do, you exercise a purely arbitrary power, which in the case of an acquittal makes the decision final; although the guilt of the party may have been fully established. It therefore follows that a jury which desires to discharge its whole duty, must take the law from the court and apply it to the facts of the case it is called to pass upon. Before you can return a verdict of guilty against the accused under this indictment you must reach a conclusion that all the material allegations contained in some one of the counts in the indictment have been fully proved.
that there is a preponderance of evidence against the defendant; but you must be satisfied from the evidence beyond a reasonable doubt of the guilt as charged in the indictment. The doubt must be real and substantial and not an imaginary or speculative doubt. It must rest upon the fact that the evidence is insufficient in your judgment to justify you in return a verdict of guilty against the accused. If therefore you have such a doubt as I have described, it will be your duty to give the accused the benefit of it. It is manifest that when Congress passed this act that its intention was to make all officers or persons, who fall within its terms responsible for human life, when it results from their misconduct, negligence or inattention to their duty. The law is humane in its provisions and no one can questions the wisdom and policy of Congress in passing and placing it upon the Federal statute books. Its the duty of the court, however unpleasant it may be, when called upon, to enforce it, and you, gentlemen of the jury, being an arm of the court in the execution of the law, if you reach the conclusion that this defendant has violated this statute, your plain duty is to return a verdict of guilty.
You will observe under the statute that it is not necessary for you to find that the defendant was guilty of wilful or intentional misconduct, negligence, or inattention to duty. It is sufficient if you find that he was guilty of a violation of the statute in the absence of any intent; and if you so find, the
should be returned. Otherwise your verdict should be for the accused.
In this connection it is proper that I should inform you what constitutes negligence. It has been well defined to be "a breach of duty." I think, however, that the better definition is that it is an omission to perform some duty, or it is a violation of some rule which is made to govern and control one in the discharge of duty. Applying this rule of law, if you should find from the evidence that the accused omitted to perform any duty or that there was an absence of proper attention, care and skill in the performance of his duties as pilot of the Scioto, then you must of necessity find him guilty of negligence and that if in consequence of such negligence the life of any person was lost, then you must find him guilty as charged in the indictment.
Upon your retirement to your chamber
that should engage your attention is whether any one of the persons named in the indictment lost his life in this collision. That fact that a number of lives were lost at the time of the collision is not disputed, but it is claimed by the defendant that the collision was not the immediate cause of the loss of life in any one of the persons named in the indictment. You will determine this question of fact and ascertain whether the collision was the immediate cause of the death of any one of the persons named in the indictment.
If you find the fact to be as the prosecution claims it, your next enquiry will be whether the loss of life was in any respect attributable "to the misconduct, negligence or inattention to duty by the accused;" for if it was solely due to other causes, then the defendant would be excused. If, however, it is answered in the affirmative, you should then ascertain whether the accused was as charged in the indictment the pilot on the Scioto, was at the wheel, steering and guiding her, shortly before and at the time of the collision. In considering these questions, you should bear in mind the rule of law, that every one accused of a crime is presumed to be innocent until his guilt is established by proof.
I have heretofore called your attention to the rules of criminal law applicable to this case, and it now becomes my duty to construe the rules and regulations for the government of pilots of steamers navigating the rivers flowing into the Gulf of Mexico and their tributaries. These rules were authorized by an act of Congress, and were adopted by the Board of Supervising Inspectors, June 1, 1871; and as amended in 1880, were in force on the 4th day of July, 1882, when the collision occurred. Since their adoption they furnish the paramount rules for pilots in guiding and steering steamers on the rivers flowing into the Gulf of Mexico.
Under rule first, it is the
when the steamers are approaching each other, to give the signal for passing, indicating on which side she will pass the ascending boat, and when such signal is given it is the duty of the ascending boat to promptly answer and accept such a signal so given, which, being done, becomes an understanding between the pilots of the two steamers as to the course each steamer will take to avoid a collision in passing. This rule was binding on the pilots of both boats at the time the Lomas blew her first whistle and before the collision occurred, and it was their duty to obey it. Neither of them should have disregarded it, unless there was at the time such imminent danger of collision that to accept it, would tend to increase that danger.
It is a conceded fact in this case that the signal was given by the Lomas blowing one blast of her steam whistle, indicating that she desired to pass to the right of the Scioto, and that the pilot of the Scioto replied with two whistles. Under this rule it was clearly the duty of the pilot of the Scioto to accept promptly the signal given by the Lomas, if in his power to do so. This was his plain duty, and he had no right to disregard it so as to change and "cross the whistle." If he could not accept the signal of the Lomas without imminent danger to his boat from collision or otherwise, he should have stopped, and if necessary backed her, and waited until he had arrived at an understanding with the Lomas. Ordinary prudence demanded this much from an officer in his position; and
he neglected to pursue the course that ordinary care and prudence would require him to do. If you should reach the conclusion that this action of the pilot in replying with two whistles instead of one produced confusion between the pilots, which contributed to or produced the collision, there can be no escape from the conclusion that he not only did that, he ought not have done, but he omitted to do what he should have done. But it you should find that the Scioto was in such a position without fault of her pilot, when the Lomas blew her whistle, that it was either too dangerous or too late to accept with safety the signal so given by the Lomas, and that a collision was so imminent as to be unavoidable then you would be justified in excusing the defendant. If therefore you find from the evidence that there was no contingency such as I have just referred to, it was his duty to accept the signal as given to pass to the right of the Lomas if he could thereby avoid a collision. Otherwise he should have resorted to all the means in his power to prevent it.
Under rule second, the first clause provides where two steamers are likely to pass near each other and the proper signals have not been made and answered by the time they have arrived at a distance of eight hundred yards of each other, the engines of both boats should be stopped. Applying this rule it was the duty of the Scioto
by the time they arrive at that distance to stop her engines, check her headway. It becomes then a pertinent inquiry to ascertain whether this was done, and was the rule complied with. If it was, and still the collision could not have been avoided, then so far as this defendant was guilty of a neglect of duty under the first clause of this rule he would be excused. But if an observance of the rule on his part would have prevented the collision, then it was his duty under the first clause of this rule he would be excused. But if an observance of the rule on his part would have prevented the collision, then it was hit duty to comply with it and stop the engines of his boat until a proper understanding was had with the Lomas as to the course each boat would pursue in passing; and a failure to do so was culpable neglect of duty on his part, which would be inexcusable. Under the second clause of this rule, if the two boats had arrived at a distance less than eight hundred yards from each other, and no proper signals had been given and answered, or if given, not properly understood, it was the duty of the pilot of the Scioto to stop the engines of his boat and back her until her headway was fully checked, and not to start his boat ahead again until the proper signals had been made, answered and understood. You will perceive that this clause of the rule requires the pilot to stop his boat as soon as he arrives inside the eight hundred yards, the distance fixed by the rule. If the evidence should satisfy you that this was not done, then clearly this is a violation of the rule which was obligatory on him and which it was his duty to observe. It is for you to decide whether such are the facts and whether if the rules had then been observed in all its parts, this collision would have been avoided by stopping the engines of his boats and checking her headway. It was his plain duty to do so, and a failure to do it was a culpable neglect of duty.
Under rule four,
at the time the Lomas had come so near that it was possible for a collision to ensue, then the Scioto would not have been justified in crossing the river in front of the Lomas. This rule, of course, must be construed with rule one; and it is intended to prevent the descending boat from requiring the ascending boat unnecessarily to cross the river; and at the same time to prohibit her from crossing in front of the ascending boat. But if the jury should reach the conclusion that when the Lomas blew one whistle she was either on a line with or to the left of the Scioto, and that when she replied with two whistles they continued the same course towards each other until the collision occurred, then rule four has no application to the facts of this case. You will, however, apply this rule to the facts and determine whether these boats bore such a relation to each other as this rule contemplates.
In this case the defendant
and inattention to duty and not to that of any other. You are to pass upon the charges as stated in the indictment again him and it is a matter of no importance so far as this trial is concerned whether the pilot of the Lomas was guilty or not guilty of contributing to the collision. Both may be guilty, or one may be guilty and the other innocent. And in this connection it is to be remember that any wrongful act of the pilot of the Lomas does not justify this defendant for a neglect of duty; and the fact that the pilot of the Lomas accepted the cross signal given by the pilot of the Scioto in replying with two blasts is no justification for the action of the defendant in this case and does not relieve him from the consequences of or justify his act in refusing the accept the first signal given by the pilot of the Lomas. And by this I mean that the rule did not authorize the pilot of the Scioto to change the signal. All he could properly do if the signal given was one he could not accept was to stop his boat and use all means in his power to avert a collision. And it is for you to say whether he did follow the rules adopted for his guide in steering his boat; and whether he did all that any prudent and careful pilot could have done to avert the great calamity that overtook his boat. If this collision was the result of misconduct, negligence and inattention to duty of others than the defendant and he in no wise contributed to it, of course it follows that no blame for it can attach to him. He is responsible only for his own conduct on this occasion and not for the conduct of any other. You must try him upon the charges as laid in the indictment and find whether they are true or false, and in your investigation
and ascertain for yourselves whether he did, under the rules of navigation and under the circumstances surrounding him from the time the two boats came in full sight of each other, all that he could do as a careful and prudent pilot to avoid the collision. In this case no question of error of judgment arises, but simply questions of fact which involve his duty, from the time the boats sighted each other until the collision occurred. I trust that you will bring to the examination of this case that calm and considerate reflection that a case of this importance requires. It is important both to the country and the defendant that the facts should be fairly and impartially considered and the law properly applied, that you may arrive at a just and proper conclusion and your action fully justified.
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