Adm'rs of Perrin v. Protection Insurance Co. eral courts, even if they continue to doubt the correctness of the latter decisions. But I am not willing to admit that this loss was occasioned by negligence; on the contrary, I insist that no negligence was shown at the trial. It will be remembered that, in all cases, when negligence is set up as a discharge of the underwriter, the fact of negligence must be clearly proved. It is not to be left doubtful, but must be as fully established as the plaintiff's cause of action. 2 Phil. Ins. 759, 760. So, if the defendants insist that the vessel became unseaworthy at a certain period, it is a fact to be proved by the insurer, because the law presumes a continued seaworthiness. So, if deviation is alleged, it must be proved. Ib.; 4 Mason, 440. If we refer to the evidence, I insist there is no evidence of negligence or carelessness. It is not pretended there was any other evidence or negligence than a desire, on the part of the captain, to make a quick trip, and what might be imagined or interred from the fact of explosion; whether this was occasioned by keeping the steam too high, by the want of water, collapsing of the flue, defects in the machinery undiscovered, was a matter of great doubt and uncertainty among the witnesses; and the most learned. men, those most scientific, appeared to differ most in their views of the cause of the disaster. The fact is, the powers of steam are not yet fully developed. The accidents, continually occurring, seem to baffle the calculations of the most skillful; and while this is the case, surely the steamboat owner is not to be charged with negligence, merely because no one can account for the accident. All that is required, on the part of the owners, is that they shall employ men having the skill usually expected of men in that particular business in which they are employed. 4 Mason, 440. It is also claimed that a loss, by the explosion of the boilers from an internal cause, is not a loss within the terms of the policy. 164] *I should as soon think of saying a loss occasioned by the wind was not a peril of the sea, when applied to a sea vessel propelled by wind. But let us look at the risks insured against. These are the risks of the river, fire, pirates, etc., and all other perils, losses, and misfortunes, which shall come to the damage of Adm'rs of Perrin v. Protection Insurance Co. the steamboat, according to the true intent and meaning of the policy (except losses in money, notes, and evidences of debt). In construing this policy it must be kept in mind that the subject insured is a steamboat, and that the risk of navigating a steamboat on the Ohio river is intended to be insured against. One of the risks of the river is the running against snags, or against rocks, or running aground. Another is, of being injured by collision. Neither of these particular risks is especially named in the policy, but it is known they are all risks that every steamboat has to run in the ordinary course of navigation, and therefore are called perils of the river. So of a vessel propelled by wind. We are not to expect that every engineer has a perfect philosophical knowledge of all properties and powers of steam. We are bound to have such engineers and officers as are usually employed in the particular trades, not the very best engineers that can be found in the world. "If it were the usage to employ masters not skilled in navigation, a vessel would be seaworthy with only such a one." 1 Phil. Ins. 312, and causes cited. Now, in this case it was proved our engineers, officers, and men were all good, and no particular act of negligence was proved, and, of course, the defense of negligence was not made out. If a sailing vessel has too much sail set, a gust of wind, may throw her on her beam ends, and occasion the loss of the vessel. This loss is not specified in the policy, but it is deemed a peril of the sea, and covered by the policy. A vessel propelled by steam has to make use of boilers and fire in order to generate the steam. One of the risks attending the generating of steam in boilers is the bursting of the boilers, [165 caused by a collapsing of the flue, or, if you please, by so increasing the heat as to create an expansive force or pressure of the steam greater than the boilers will bear. Is not this bursting one of the perils attending the navigation of the river? "The general rule is, that the insurer charges himself with all the maritime perils that the thing insured can meet with on the voyage." "The policy sweeps, within its inclosure, every peril incident to the voyage, however strange or unexpected, unless there be a special exception." The perils enumerated in the common policy are sufficiently Adm'rs of Perrin v. Protection Insurance Co. comprehensive to embrace every species of risk to which ships and goods are exposed from the perils of the sea, and all other causes incident to maritime adventures. 3 Kent's Com. 291. "Under the perils of the sea, which constitute a part of the risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other vessels, and, in general, all causes of loss and damage to the property insured, arising from the elements, and inevitable accidents, other than those of captures." 2 Phil. Ins. 635. Under the term, perils of the river, therefore, I insist, a loss by the explosion of the boilers must be included. The boat is expected to be propelled by steam, and one of the risks of using steam is explosion. In the language of Lord Mansfield, "the means must be taken to be insured, as well as the end." 1 Bur. 348. Again, the clause by which the owner is insured against-"all other losses and misfortunes which should come to the damage of said steamboat"-covers the loss by explosion. Now, it is admitted that the whole instrument must be taken together in giving it an interpretation. This clause means something, and, it is said, "may have the effect of extending reasonable indemnity to many cases not distinctly covered by the special words; they are entitled to be considered as material and opera166] tive words, and to have their due effect assigned to them in the construction of this instrument, and which will be done by allowing them to comprehend and cover other cases of marine damage, of the like kind, with those specially enumerated, and occasioned by similar causes." 2 Phil. Ins. 688; 5 M. & S. 461. This clause, then, may be said to cover other losses not enumerated in the policy, provided they are occasioned by the perils incident to the business. We must take a common-sense view of the question in this, as in all other cases, and not be seeking after technical excuses. As the ingenuity of man is continually contriving new means of effecting the same object, whether it is in propelling boats, or performing any other useful act, we must consider these new means of obtaining the same object, as embraced in every contract made, in which their use is fairly expected. And such has been the decisions and practice of the courts. Thus, we find, in Ellery v. New England Insurance Company, 8 Pick. 14, where a ship had been hauled out on a marine railway Adm'rs of Perrin v. Protection Insurance Co. to be repaired, and, while being hauled, fell over on her side. It was held, that although his mode of repairing was of modern origin-indeed, had been introduced after the policy had been signed-yet, as the railway had been tested again and again, was in common use when the ship was placed upon it, the court decided that the loss came within the description of "all other losses," and that the parties might reasonably be supposed to contemplate, that the most approved means should be employed in repairing, as well as in the management of the ship; and that, as the ship was within the protection of the policy when repairing, "the means must be taken to be insured as well as the end." But, in the present case, I suppose, as, in the case in 11 Pet. 224, the explosion was caused by fire, the latter was the proximate cause of the loss, and the policy, therefore, covers this loss by the express terms of the policy. Since the foregoing was written, I have seen the argument of the defendants' counsel, and have nothing to add to what I have already said on the subject before discussed. But, on *the argument of the defendants' counsel, as to the refusal [167 of the court to permit the question, as to the opinion of the witness, to be propounded, I have a few remarks to make. The defendants' counsel, in attempting to sustain the right to ask the question propounded, place it on the ground that it is a question of science or skill, and that, therefore, persons of science and skill may answer by giving an opinion. I do not so consider this matter. In the first place, when the opinion of a man is asked, instead of facts, that opinion is received upon the supposition that there is a difficulty in making a full explanation of the particular facts to the jury, because they are so connected with the particular science as not to be easily understood, except by persons learned in the science, and hence opinion is substituted for facts. "The rule is confined to cases in which, from the very nature of the subject, facts disconnected from such opinions can not be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment." Wend. 78. 7 But it must be recollected, also, that persons of science, etc., who give their opinion, are bound to disclose the facts upon which they are based; and even a physician, although upon facts testified to by others, may give an opinion that the wound, etc., Adm'rs of Perrin v. Protection Insurance Co. was capable of producing death, yet he can not be asked for his opinion of the whole case, or whether the accused was the cause of the crime, etc. So the opinions of witnesses as to the improbability of a blow having been given from which death ensued, judging from the relative positions of the parties, as stated by witnesses, are not admissible. 19 Wend. 569. case. If we look at the question propounded, we shall see that the whole object of it is to ascertain the opinion of the witness whether there was negligence in the management of the boat. This is the naked question, when stripped of the artful manner of propounding it. Let us put the question directly to the witness, and it will be in these words: Do you think this loss would have taken place if the managers of the boat had not been guilty of 168] negligence? Suppose the answer to be no; then the question would be asked, why do you come to that conclusion? And the answer would be, in the language of the interrogatory, be cause if the machinery and boilers be of good material, properly constructed, and in good order, and managed with skill and care, an explosion can not take place. So that every one must perceive that it is really asking the opinion of a witness as to the whole There is not a case to be found giving countenance to such an interrogatory. Its object is to induce the jury to adopt the conclusions of witnesses, instead of their own, and there was not a man on the jury who could have answered the question as well as a scientific man. There is no case where an insurance office might not avoid paying a loss, if negligence was to be proven by such sort of testimony. There is no loss happens, probably, without some fault, negligence, or risk run. A boat, by laying by all night, might avoid running against a snag, which could be seen in the day-time, although not at night. A boat is run aground, and yet, if the pilot had taken the precise place, where the water was deepest, he would not have grounded, and it was carelessness in him not to have taken that particular spot. A steward or servant has left a candle burning, and it has by some means set the boat on fire. The office says this was a careless act, and we are not bound, because if the boat was sound, managed with skill and care, the fire could not have taken place. So an engineer accidentally falls asleep, and by some means the supply-pump gets out of order, and no water is forced into the boilers, in conse |